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Mickey Mouse vs. The Public Domain
By Jenna Irwin
January 20, 2003

Is it fair to take away revenue from companies because the copyright on one of their cornerstone products has run out? Is it fair to let materials like books and movies moulder into non-existence because they are neither released to public domain nor perceived to be profitable to their copyright holder? Do these two issues have to stand in opposition?

Eldred vs. Ashcroft

Eric Eldred runs a site called Eldritch Press where he digitizes public domain books and makes them available - free - to anyone who wants to access them. Not only is he making sometimes hard to find materials available to anyone with Internet access, he is preserving materials that might otherwise be lost to the ravages of time. Many of the works he posts to his site had faded from public sight over time, and might never have been made available if he had not.

Before the Sonny Bono Act of 1998, new copyrighted works were expected to come into public domain every year. Eldred - and others - looked forward to the new availability of these works and the chance to re-issue forgotten materials. And this was where he ran up against Mickey Mouse.

Mickey Mouse's copyright was due to run out in 2003, along with such desirable properties as Winnie the Pooh and the song "Yes, We have No Bananas". (Eldred vs. Ashcroft: a Primer) Several other Disney characters were bound for the public domain in the next few years, and Disney, as well as a number of other large media corporations such as Time-Warner, put heavy support behind the Sony Bono Act to extend copyright yet again - the 11th time in the last 40 years.

This meant no new materials would come into public domain for another 20 years. Eldred and others took the law to court, claiming this extension went beyond the constitutional bounds of a "limited" period for copyright to promote innovation. They claimed the crushing of the public domain stifled innovation and that the continual extension of copyright was in essence giving copyright in perpetuity.

The Supreme Court saw things differently, voting 7-2 in favor of the extension. Their argument was that the Congress has the right to extend copyright, and that it is not the court's place to decide the length of the unspecified limited time mentioned in the Constitution.

How does this affect information access?

This decision means that all the burden of keeping these materials available is laid on archivists - if the currently available physical manifestations of these works are destroyed, all the information contained in them will be lost…forever. Unless we can expect materials that have been out of print for decades to become suddenly profitable again, making it worthwhile for corporate publishers of books and movies to protect them, archivists will be the sole caretakers of past generations' contributions to our collected knowledge.

Unfortunately, in the case of films particularly, these materials are often not in the hands of skilled archivists. Many films from this period may already be lost due to material degradation, and even those films now salvageable may be beyond recovery in another 20 years. The film recordings of an entire generation could be lost, just to save Mickey Mouse.

As information specialists, we cannot afford to just let this pass. We may not be able to convince Disney that Mickey needs to be public domain - and maybe he doesn't since Disney isn't letting his films rot in their tins - but we should be working to preserve materials that would otherwise be lost.

Lawrence Lessig, the Stanford law professor who defended Eric Eldred et al. in the recently defeated Eldred vs. Ashcroft case before the Supreme Court, doesn't believe so. He suggests that there is a simple solution to balance the needs of the copyright holder against the need of the public domain - simply charge a tax (or registration fee, if you prefer) 50 years after publication. If a copyright holder fails to pay the fee three years in a row, the material would be released to public domain. The copyright office would keep the list of copyrights on a publicly accessible website, making it simple to track down the copyright status of any given material, and if an item is in copyright, to contact the current holder to discuss use. (Lessig, Eldred FAQ)

Lessig's plan would not solve all of the difficulties caused by near-perpetual copyright - such as artist's ability to freely work with older works but would allow Disney to keep their copyright if they wanted, and would be likely to release better than 90% of the materials protected by the Bono Act into the public domain since 97% of books and 90% of films from the period the act covers are not currently available in any form, (Schultz) and thus are not earning revenue for anyone.

The New York Times calls the public domain "the great democratic seedbed of artistic creation" (The Coming of Copyright…) and claims that the great experiment of public domain is over now. Unless Lawrence Lessig or someone like him prevails, they may be right.

"The Coming of Copyright Perpetuity" New York Times online. Published: Jan 16, 2003.
Accessed Feb 20, 2003 at

"The Eric Eldred Act FAQ" The Eric Eldred Act. Accessed:Feb 20, 2003

"Eldred v. Ashcroft: A Primer" Accessed: Feb 20, 2003

Lessig, Lawrence. "Protecting Mickey Mouse at Art's Expense."
New York Times online. Published: Jan 18, 2003. Accessed: Feb. 20, 2003 18LESS.html?ex=1043470800&en=

Schultz, Jason. "The Myth of the 1976 Copyright 'Chaos' Theory" Accessed: Feb 20, 2003


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