著作權年限延長法案

立法背景

依据1886年的国际伯尔尼保护文学和艺术作品公约（简称伯恩公约），签署公约的国家被要求提供对作者至少死后加上五十年的著作权保护。除此之外，签署国也可以提供比死后五十年更长的保护年限。直到1989年3月1日美国正式批准伯恩公约之后，此公约才在美国具约束力。但是在此之前，美国已经于1976年版的著作权法案提供了伯恩公约所规范的著作权最短所需年限。
在美国加入了伯恩公约之后，部分著作权的既得利益者成功地游说美国国会再一次延长著作权的年限，让美国的保护年限能够跟欧洲的规范相同。自从1993年统一著作权保护期间指令生效后，欧洲联盟的成员国便将著作权保护的年限延长至作者死后加上七十年。
为了纪念去世的国会议员桑尼·波诺，上述延长著作权年限的法案便以他的姓名为法案名称。桑尼·波诺在法案正式成为通过的九个月前过世；他之前曾经是一个类似法案的十二名赞助者之一。
众议院的议员对于饭店、酒吧的老板抱持同情，这些企业主对于美国作曲家、作家、和发行商协会（ASCAP）以及BMI公司的授权方式感到愤恨不平，这差点让法案无法通过。最后，桑尼·波诺法案被修改，纳入1998年音乐著作公平授权法案，免除小型单位需要申请公共表演授权才能播放音乐的限制。
美国国会两院都以口头表决通过此法案，为美国联邦公法第105-298法案克林顿总统在1998年10月27日签署了桑尼·波诺著作权年限延长法案。

参议院报告104-315

参议院报告提供了为何要通过著作权延长法律的原因。原本这是在1995年的著作权年限延长法案的提案背景中所撰写。
本法案的目的是确保美国的创作在国外有得到足够的著作权保护，并且透过利用有著作权的创作来持续享有经济面上健全的贸易利得。为达成上述目标，本法案透过将美国现行的著作权年限延展21年。这样的延展让美国的著作权法规跟欧洲联盟的年限达到一致，能够提供明显的经济效益，确保美国的创作者能够完全地利用其创作而享有合理的补偿。此外，透过刺激新的创作、提供更多经济诱因给保存既存的作品，这样的延展将能够增进公众领域长期下来的容量、活力、与存取便利性。
报告的作者们相信延展著作权的保护年限，将能够帮助美国在国外保护他们的创作更多的保护，而因为提供创作者更多独享的权益也能提供更多诱因来数字化与保存其作品。此报告也纳入了赫伯·柯尔与汉克·布朗两位参议员的非主流意见，他们认为延长年限会是借由剥夺大众使用作品而使现有著作权拥有者的一笔意外之财。

支持方

自1990年始，华特迪士尼公司就在倡议著作权年限的延长。这个的立法延后了最早的几部米老鼠电影进入公众领域的年限，这也让此法案有了“米老鼠保护法案”的谑称。
除了迪士尼之外，加州的国会议员玛莉·波诺（桑尼·波诺之妻，也是桑尼过世后的议员职务继任者），还有作曲家乔治·格什温著作权的拥有者也支持这个法案。玛莉·波诺曾在美国众议院的公开演讲说道：
实际上，桑尼是想要著作权保护的年限延长到永远。我被工作人员告知这样的变更会违反宪法⋯⋯你们可能知道，也有（当时为美国电影协会（MPAA）主席的）捷克·维兰提之“永久减一天的年限延长”提案。也许委员会可以在下一届的国会来检视这个点子。
其他支持赞成波诺法案的游说团体还有华纳媒体、环球影业、维亚康姆、主流的职业运动联盟（美国橄榄球联盟（NFL）、NBA、国家曲棍球联盟（NHL）、大联盟（MLB））、以及遇害歌手莎丽娜的家人。
波诺法案的拥护者指出，自从国会通过原本1790年的著作权法案后，人类的预期寿命已经大幅的增长，故修法是必要的。，美国和欧洲的著作权年限的差异将会对演艺界的国际运作起负面的影响，他们也认为有些创作是需要更长期的著作权专享的情形下才会有人愿意进行，现行的年限并不足。他们也声称对美国而言有著作权的作品之利润是占美国很重要的收入，像是VHS、DVD、有线电视、卫星电视也已经增进了电影和电视剧的价值与商业生命。

已隐藏部分未翻译部分，欢迎参与翻译。
Proponents contend that Congress has the power to pass whatever copyright term it wants because the language "To promote the progress of science and useful arts" in the United States Constitution is not a substantive limitation on the powers of Congress, leaving the sole restriction that copyrights must only last for "limited times." However, in what respect the granted time must be limited has never been determined, thus arguably even an absurdly long, yet finite, duration would still be a valid limited time according to the letter of the Constitution as long as Congress was ostensibly setting this limit to promote the progress of science and useful arts. This was one of the arguments that prevailed in the Eldred v. Ashcroft case, when the Supreme Court upheld the constitutionality of the CTEA. It is also pointed out by proponents that the extension did not prevent all works from going in the public domain. They note that the 1976 Copyright Act established that unpublished works created before 1978 would still begin entering the public domain January 1, 2003 (Known author: life of the author plus 70 years; anonymous/pseudoanonymous/unknown author/works-for-hire: 120 years from creation), and that the provision remained unaffected by the 1998 extension. They also claim that Congress has actually increased the scope of the public domain since, for the first time, unpublished works will enter the public domain.
Proponents believe that copyright encourages progress in the arts. With an extension of copyright, future artists have to create something original, rather than reuse old work, however, had the act been in place in the 1960s, it is unlikely that Andy Warhol would have been able to sell or even exhibit any of his work, since it all incorporated previously copyrighted material. Proponents contend that it is more important to encourage all creators to make new works instead of just copyright holders.
Proponents say that copyright better preserves intellectual property like movies, music and television shows. One example given is the case of the classic film It's a Wonderful Life. Before Republic Pictures and Spelling Entertainment (who owned the motion picture rights to the short story and the music even after the film itself became public domain) began to assert their rights to the film, various local TV stations and cable networks broadcast the film endlessly. As New York Times reporter Bill Carter put it: "the film's currency was being devalued."
Many different versions of the film were made and most if not all were in horrible condition. After underlying rights to the film were enforced, it was given a high quality restoration that was hailed by critics. In addition, proponents note that once a work falls into the public domain there is no guarantee that the work will be more widely available or cheaper. Suggesting that quality copies of public domain works are not widely available, they argue that one reason for a lack of availability may be due to publishers' reluctance to publish a work that is in the public domain for fear that they will not be able to recoup their investment or earn enough profit.
Proponents reject the idea that only works in the public domain can provide artistic inspiration. They note that opponents fail to take into account that copyright applies only to expressions of ideas and not the ideas themselves. Thus artists are free to get ideas from copyrighted works as long as they do not infringe. Borrowing ideas and such are common in film, TV and music even with copyrighted works (see scènes à faire, idea-expression divide and stock character). Works such as parody benefit from fair use.
Proponents also question the idea that extended copyright is "corporate welfare." They state that many opponents also have a stake in the case, claiming that those arguing against copyright term extension are mostly businesses that depend on distributing films and videos that have lost their copyright.
One argument against the CTEA is focused on the First Amendment. In Harper & Row v. Nation Enterprises, however, the court explained how a copyright "respects and adequately safeguards the freedom of speech protected by the First Amendment." In following this approach, courts have held that copyrights are "categorically immune from challenges under the First Amendment."

反对方

Critics of the CTEA argue that it was never the original intention for copyright protection to be extended in the United States. Attorney Jenny L. Dixon mentions that "the United States has always viewed copyright primarily as a vehicle for achieving social benefit based on the belief that encouragement of individual effort by personal gain is the best way to advance the public welfare;" however, "the U.S. does not consider copyright as a 'natural right.'" Dixon continues that with increased extensions on copyright protections, authors receive the benefits, while the public have more difficulty accessing these works, weakening public domain. One such extension Dixon mentions is the protection of a copyrighted work for the author's life followed by two generations, which opponents argue that there is no legislation nor intention for this copyright protection. "These constitutionally-grounded arguments 'for limitations on proprietary rights' are being rejected time and time again."
Dennis S. Karjala, a law professor, led an effort to try to prevent the CTEA from being passed.  He testified before the Committees on the Judiciary arguing "that extending the term of copyright protection would impose substantial costs on the United States general public without supplying any public benefit. The extension bills represent a fundamental departure from the United States philosophy that intellectual property legislation serve a public purpose."
An editorial in The New York Times argued against the copyright extension on February 21, 1998.  The article stated "When Senator Hatch laments that George Gershwin's Rhapsody in Blue will soon 'fall into the public domain,' he makes the public domain sound like a dark abyss where songs go, never to be heard again. In fact, when a work enters the public domain it means the public can afford to use it freely, to give it new currency."
Opponents of the Bono Act consider the legislation to be corporate welfare and have tried (but failed) to have it declared unconstitutional, claiming that such an act is not "necessary and proper" to accomplishing the Constitution's stated purpose of "promot[ing] the progress of science and useful arts". They argue that most works bring most of the profits during the first few years and are pushed off the market by the publishers thereafter. Thus there is little economic incentive in extending the terms of copyrights except for the few owners of franchises that are wildly successful, such as Disney. They also point out that the Tenth Amendment can be construed as placing limits on the powers that Congress can gain from a treaty. More directly, they see two successive terms of approximately 20 years each (the Copyright Act of 1976 and the Bono Act) as the beginning of a "slippery slope" toward a perpetual copyright term that nullifies the intended effect and violates the spirit of the "for limited times" language of the United States Constitution, Article I, section 8, clause 8.
Some opponents have questioned the proponents' life expectancy argument, making the comparison between the growth of copyright terms and the term of patents in relation to the growth of life expectancies. Life expectancies have risen from about 35 years in 1800  to 77.6 years in 2002. While copyright terms have increased threefold, from only 28 years total (under the Copyright Act of 1790), life expectancies have roughly doubled. Moreover, life expectancy statistics are skewed due to historically high infant mortality rates. Correcting for infant mortality, life expectancy has only increased by fifteen years between 1850 and 2000.
In addition, copyright terms have increased significantly since the 1790 act, but patent terms have not been extended in parallel, with 20-year terms of protection remaining the (presumably under the laws) adequate compensation for innovation in a technical field. 
Seventeen prominent economists, including Kenneth Arrow, Ronald Coase, and Milton Friedman, submitted an amicus brief opposing the bill when it was challenged in court. They argued that the discounted present value of the extension was only a 1% increase for newly created works, while the increase in transaction costs created by extending the terms of old works would be very large and without any marginal benefit. According to Lawrence Lessig, when asked to sign the brief, Friedman had originally insisted that "the word 'no-brainer' [appear] in it somewhere," but still agreed to sign it even though his condition was not met.
Another argument against the CTEA is focused on the First Amendment "because of the prospective and retrospective application of the CTEA." The plaintiffs in Eldred v. Reno believed that "the CTEA failed to sustain the intermediate level of scrutiny test afforded by the First Amendment because the government did not have an 'important' interest to justify withholding speech."
Opponents also argue that the Act encourages "offshore production." For example, derivative works could be created outside the United States in areas where copyright would have expired, and that US law would prohibit these works to US residents. For example, a movie of Mickey Mouse playing with a computer could be legally created in Russia, but the movie would be refused admission for importation by US Customs because of copyright, resulting in a deprivation to American children. Similarly, the first Winnie-the-Pooh book was published in 1926 and would have been public domain in 2001.
Opponents identify another possible harm from copyright extension: loss of productive value of private collections of copyrighted works. A person who collected copyrighted works that would soon "go out of copyright," intending to re-release them on copyright expiration, lost the use of his capital expenditures for an additional 20 years when the Bono Act passed. This is part of the underlying argument in Eldred v. Ashcroft. The Bono Act is thus perceived to add an instability to commerce and investment, areas which have a better legal theoretical basis than intellectual property, whose theory is of quite recent development and is often criticized as being a corporate chimera. Conceivably, if one had made such an investment and then produced a derivative work (or perhaps even re-released the work in ipse), he could counter a suit made by the copyright holder by declaring that Congress had unconstitutionally made, ex post facto, a restriction on the previously unrestricted.
Howard Besser questioned the proponents' argument that "new works would not be created", which implies that the goal of copyright is to make the creation of new works possible. However, the Framers of the United States Constitution evidently thought that unnecessary, instead restricting the goal of copyright to merely "promot[ing] the progress of science and useful arts". In fact, some works created under time-limited copyright would not be created under perpetual copyright because the creator of a distantly derivative work does not have the money and resources to find the owner of copyright in the original work and purchase a license, or the individual or privately held owner of copyright in the original work might refuse to license a use at any price (though a refusal to license may trigger a fair use safety valve). Thus they argue that a rich, continually replenished, public domain is necessary for continued artistic creation.

1998年3月25日的众议院辩论

The House debated the Copyright Term Extension Act (House Resolution 390) on March 25, 1998.  The term extension was almost completely supported, with only the mild criticism by Jim Sensenbrenner (Wisconsin) of "H.R. 2589 provides a very generous windfall to the entertainment industry by extending the term of copyright for an additional 20 years."  He suggested that it could be balanced by adding provisions from the Fairness in Music Licensing Act (H.R. 789).  Lloyd Doggett (Texas) called the 'Fairness in Music Licensing Act' the 'Music Theft Act' and claimed that it was a mechanism to "steal the intellectual property of thousands of small businesspeople who are song writers in this land."  The majority of subsequent debate was over Sensenbrenner's House Amendment 532  to the CTEA. This amendment was over details of allowing music from radio and television broadcasts in small businesses to be played without licensing fees.  An amendment to Sensenbrenner's amendment was proposed by Bill McCollum,.  The key differences between Sensenbrenner's proposal and McCollum's amendment were 1) local arbitration versus court lawsuits in rate disagreements, 2) all retail businesses versus only restaurants and bars, 3) 3500 square feet of general public area versus 3,500平方英尺（330平方米） of gross area, 4) which music licensing societies it applied to (all versus ASCAP and BMI), and 5) freedom from vicarious liability for landlords and others leasing space versus no such provision.  After debate (and the first verse of American Pie) the McCollum Amendment was rejected in by 259 to 150 and the Sensenbrenner amendment was passed by 297 to 112.  The Copyright Term Extension Act H.R. 2589 was passed.
The term extension was supported for two key reasons.  First, "copyright industries give us [(the United States)] one of our most significant trade surpluses."  Second, the recently enacted legislation in the European Union had extended copyright there for 20 years, and so EU works would be protected for 20 years longer than US works if the US did not enact similar term extensions.  Howard Coble also stated that it was good for consumers since "When works are protected by copyright, they attract investors who can exploit the work for profit."  The term extension portion was supported by Songwriters Guild of America, National Academy of Songwriters, the Motion Picture Association of America, the Intellectual Property Law Section of the American Bar Association, the Recording Industry Association of America, National Music Publishers Association, the Information Technology Association of America and others.

法理违宪

Publishers and librarians, among others, brought a lawsuit, Eldred v. Ashcroft, to obtain an injunction on enforcement of the act. Oral arguments were heard by the U.S. Supreme Court on October 9, 2002. On January 15, 2003 the court held the CTEA constitutional by a 7–2 decision.
In 2003, the plaintiffs in the Eldred case began to shift their effort toward the U.S. Congress in support of a bill called the Public Domain Enhancement Act that would make the provisions of the Bono Act apply only to copyrights that had been registered with the Library of Congress.

实务测试

In 2012, law professors Christopher Buccafusco and Paul J. Heald performed tests of three key justifications of copyright extension, namely: that public domain works will be underutilized and less available, will be oversaturated by poor quality copies, and poor quality derivative works will harm the reputation of the original works. They compared works from the two decades surrounding 1923 made available as audiobooks. They found that copyrighted works were available at a significantly lower rate than public domain ones, found no evidence of overexploitation driving down the price of works, and that the quality of the audiobook recordings did not significantly affect the price people were willing to pay for the books in print. Heald's later experiment analyzing a random sample of newly-posted works on Amazon.com revealed that public domain works from 1880 were posted at double the rate of copyrighted works from 1980.