In a recent post about “The Global Garroting of the Public Domain,” William Patry describe beautifully how we have arrived, in the US, at such a long term of copyright protection, and how international trade negotiations are used to continually ratchet up the pressure for ever-stronger and ever-longer copyright rules. The main point of his post, about how US interests now seriously threaten the publishing industry in Korea, not because of piracy in Korea but merely because some large US content owners are anxious to keep older works in this country out of the public domain, is a sad lesson in unintended (at least by some) consequences. His post, as well as some interesting comments on it by Georgia Harper here at Collectanea, reinforces a point made in this space about “policy laundering” using international trade negotiations.

As if to add strength to Patry’s argument that the real purpose behind copyright term extension has never been stronger incentives for future creation, but rather to keep older works out of the public domain, two recent news articles recount cases on exactly that topic. In one, with an international flavor of its own, Japanese news sources report that the Supreme Court in that country has rejected a claim by US movie studios that the 1953 movie “Shane” should continue to be protected even though its copyright expired, under the Japanese law in place at the time, at the end of 2003. A new law put an extension of the term into place as on January 1, 2004, but the court declined to apply the extension to movies that fell into the public domain at the same moment that the new term of protection took effect.

Content owners were more successful in their arguments that some studio outtakes from songs by Elvis could not be used in a new album. Although the producer of the new album by Cargo Record firmly believes that the material was recorded early enough to be in the public domain, the company has decided not to release the album after a threatening letter from Sony BMG. A Sony spokesman was very frank about not wanting to let others “assume” that these works are in the public domain when they “may” not be. A perfect expression of the “chilling effects” that may be the primary purpose of the Sonny Bono Copyright Term Extension Act.

These cases provided added evidence to Patry’s powerful argument that restricting the public domain, not encouraging creativity in the future, is the real motive force behind not only our last copyright term extension but also the calls that are already being heard for further extensions.