‘Yes! We Have No Bananas’ – Free at Last!

At the end of the year, unless Congress intervenes, some copyrighted works will fall into the public domain for the first time since 1997.  These works, created in 1923, include the song ‘Yes! We Have No Bananas’, a Charlie Chaplin movie, and Kahlil Gibran's The Prophet.

Article I, Section 8 of the U.S. Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To issue patents and copyrights, in other words. 

This power was not granted in the preceding Articles of Confederation, although some states had their own laws.  The Founders decided it didn’t make much sense to have patent and copyright protection stop at the state line, because people could profit elsewhere from stealing the invention or writing, thereby lessening the economic incentive to create such works. [remarks of Thomas McKean at the Pennsylvania ratifying convention]  The Copyright and Patent Clause was adopted unanimously at the Constitutional Convention in Philadelphia without debate.  Trademarks are protected separately, under the Commerce Clause.

The validity of both copyright and patent protection depends on originality.  Copyright only applies to original works and a patent must also display originality, not just be an improvement on an existing item.  The copyright office requires authors to be human.  Sorry, elephant art need not apply.  The question whether computer-generated computer code is copyrightable has not been litigated.

The most interesting constitutional question that’s come up in copyright is whether Congress violates the Constitution by repeatedly extending the term of copyrights so they don’t expire.  The language in the Constitution only empowers Congress to grant copyrights for a “limited time”, not into perpetuity.  The Supreme Court ruled in 2003 that Congress did not exceed its constitutional authority, or establish perpetual copyrights, by enacting what is derisively called ‘the Mickey Mouse Protection Act’ which continued a pattern of repeated, retroactive extensions [Eldred v. Ashcroft].  So Mickey’s still safe, for now.

Don’t overlook a couple of basic points in all of this. First, copyright and patent protections are engines of our prosperity.  American books, songs, movies, and inventions have been preeminent around the world in no small part because their creators were assured by law of a return on their efforts here at home. 

Second, these rights - granted by the government though they may be - are part of the fabric of our freedom.  They are integral to our economic freedom, a Tea Party core value.  We’re free to write and invent, and reap the rewards.  Theoretically, the government could take away these rights.  Remember, Article 1, Section 8 gives Congress the power to set up copyrights and patents, but does not require it to do so.  But copyrights and patents were already in use on the continent by the time of the Founding.   The Founders wisely provided for their more systematic protection on a national basis.  Once again, the Founders got it right and we are more prosperous and more free as a result.