Sen. Josh Hawley’s phony interest in altering copyright to “punish” Disney

Senator Josh Hawley (R – Missouri) has introduced legislation he calls the “Copyright Clause Restoration Act of 2022”. I assume this is political showboating intended to impress his constituents that he is willing to “punish” Disney. It would “restore” copyright from the automatic 95 years it is now back to the original requirement to register for a 28 year protection with an option to renew for an additional 28, so perhaps a total of 56. This would apply to all new copyrights, not just Disney or large corporations.

First off, corporations don’t have separate copyright rules. The rules split into two categories: those for independent authors (original authorship) and those for employees (works-for-hire). The “work-for-hire” rules apply whether it’s a single employee of a sole proprietiership or a massive corporation.  

Then the bill attempts to make it retroactive, but only for corporations over a certain size (a Market Capitalization over $150 billion). How this would shake out in practice is a bit hazy of course. While Disney is a $203 billion company, it has outstanding debts of $105 billion, so a Net Worth of something like $97 billion. So would the “rules” even apply to Disney? Microsoft on the other hand is a $2 trillion company. The legislation says the retroactive portion applys to any company over $150 billion that “engages in substantial activites” which can be described as Arts, Entertainment or Recreation. So would Microsoft’s gaming division be substantial enough to make it subject to the retroactive portion of the bill? Who knows?

The real problem with the “Restoration” term is that it violates the Berne Convention for the Protection of Literary and Artistic Works. This is an international agreement the US signed, along with 178 other countries, intended to “level” the playing field for the many different copyright laws throughout the world. It requires automatic copyright (no registration needed) and a minimum copyright duration of 50 years after the death of the author (not a term measured from the publication date), and that the signing countries recognize the copyrights of the other countries who signed. Countries are free to make their copyright protections last longer than the minimum, but the signing coutries are not required to enforce those copyrights past the Berne minimum.

Even ignoring the fact the proposed legislation violates our existing treaties and agreements, it seems pretty clear that having the US government “sieze” some of the property of every creator in the US is a poison pill intended to insure the legislation won’t pass. He can then blame everyone else for not doing what is “right”. 

But we know better.

Leave a Reply

Your email address will not be published.