Page 3: The Social Bargain

Unit 2, Lab 5, Page 3

On this page, you will consider some of the legal history of copyrights.

Here’s the US Constitution (Article 1, Section 8) on copyrights and patents:

The Congress shall have 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; […]

Pay special attention to the part about “for limited Times.” Despite the “right” in the name “copyright,” copyrights aren’t rights the way freedom of speech, or even owning a house and the land underneath it, are rights. In the case of homes, an owner can pass the right of ownership on to her children, grandchildren, and so on forever. But copyrights and patents are in force only for a limited time.

Over the past 50 years or so, Congress has repeatedly extended the duration of copyrights. Critics note that each of these extensions has come just as the first Mickey Mouse cartoon was about to pass out of copyright. Although all concerned say this is a coincidence, the Disney company has become a sort of poster child for abuse of copyrights. Ironically, many of the Disney cartoons (Snow White, Cinderella, etc.) are based on stories that are in the public domain (okay for anyone to use), but would still be under copyright if today’s copyright law had been in effect when earlier versions were written.

Why did the writers of the Constitution include provisions for copyrights (and patents)? What they had in mind was not an absolute property right, but rather a bargain in which society lets authors and inventors make a lot of money from their ideas, but in return those ideas must eventually belong to the entire society, free for anyone to use.

When someone has a birthday party at a restaurant, it’s very common that when they bring out the birthday cake, all the waiters gather around the table and sing “Happy Birthday.” But until quite recently, they did so illegally; there is a copyright currently owned by Warner/Chappell Music, based on the original authorship of a song with the same melody but different lyrics by sisters Patty and Mildred Hill in 1893 (more than a century ago). A 2015 court decision has invalidated the copyright, but it may be appealed by Warner, which had been collecting about $2 million per year in fees charged for permission to use the song, especially in films.