Pooh Had His Run. Copyright Terms Don’t Need to Keep Extending.

Last year, the Walt Disney Company made headlines when the copyright to one of its most successful characters, Winnie the Pooh, expired.

Much was made of the significant money Disney would now lose because this particular version of Winnie the Pooh was no longer protected—and is being reimagined as a killer in the horror film “Winnie the Pooh: Blood and Honey.”

But we need not shed tears for Disney. Disney made billions of dollars off the Winnie the Pooh franchise.

More importantly, the copyright scheme was designed precisely to have works such as Winnie the Pooh, at some point, lose protection and fall into the public domain—a critical and indispensable feature of the copyright regime. Simply put, copyrights do not last forever.

Congressional Authority

The US Constitution grants Congress the authority to protect literary and artistic works—“Writings”—for “limited Times.” Contrary to popular belief, the Constitution’s framers did not provide for copyright protection as a reward for the labor of authors.

Rather, the primary purpose of copyright protection is to ensure the public benefits from a copyright regime that produces a wide variety of creative works for public consumption.

In other words, Congress can pass copyright law to provide incentives for artists to create, promoting creativity to benefit the public by allowing access to authors’ creative contributions. Nevertheless, while we can agree that the public interest is paramount, how to best advance the public interest is a source of contention.

At one extreme, Congress could provide near unlimited protection for copyrighted works. This, it would seem, would be the ultimate authors’ incentive and might result in an avalanche of new works.

At the other extreme, all newly created works would fall into the public domain immediately—or very soon after creation—which would allow the public to enjoy these works, and would allow future artists access to these works to create yet additional works.

In balancing these competing interests, one may wonder whether Congress has gone too far in one direction by extending copyright terms.

A Copyright’s Path

For its part, in striking this complex balance between protecting authors’ ownership interests in works and the public’s interest in access to creative works, Congress has expanded the copyright term far beyond its original term.

The original copyright term (1790) was set at 14 years. The term has steadily increased from this initial 14 years, with a possible 14-year renewal, to 28 years, with a potential 14-year renewal (1831), to 28 years with a potential 28-year renewal (1909), to the life of the author plus 50 years (1976), to its current term of life of the author plus an additional 70 years (1998).

The concept of “limited Times” is foundational to copyright law because it helps define and protect the public domain. Each time Congress expands the term, society is denied the benefits of free and unrestricted access to the extended works.

The fewer works that enter the public domain, the less vibrant and diverse it is and, in turn, the less the scheme promotes public use of creative outputs.

Fair Use

Two safeguards are built into the copyright regime that perhaps ameliorate the potentially harsh consequences of an ever-expanding copyright term: fair use and the idea-expression dichotomy. Fair use allows others to use a copyrighted work without the author’s permission if use of that work is deemed “fair.”

While there are multiple factors to consider, the overriding concern in fair use cases is that the second use does not interfere with the original author’s ability to economically exploit their work.

Thus, for example, a second work that does not significantly change the original work and is commercially exploited in the same market as the original, is unlikely to be found fair. This term, the Supreme Court is deciding a fair use case, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.

The idea-expression dichotomy captures the notion that copyright protects an author’s individual expression, but not their underlying idea.

For example, Disney could not protect the idea of a talking mouse, but it can protect its particular expression of that mouse—i.e., the particular look, name, characteristics that make up Mickey Mouse. In this way, others are free to use the idea to create other works.

Though copyrights do not last forever, the lifetime of an author plus an additional 70 years seems like an awfully long time. Will Congress move to again expand the term? It seems unlikely.

Do authors need the additional incentive of a few more years? Is the harm to the public domain worth the extra protection? Moreover, is it likely the framers of the Constitution envisioned the current term?

Here’s one author who hopes we’ve seen the last of copyright term extensions.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Donald P. Harris is associate dean for academic affairs and equity, diversity, and inclusion liaison at Temple University Beasley School of Law. He is a specialist in international intellectual property and teaches in the areas of intellectual property and commercial law.