Senator Josh Hawley (R-Mo.) is quickly proving that his zeal to garner a MAGA headline knows virtually no limits — including constitutional limits and those that protect American business — especially when it comes to one-upping his Republican political rivals.
In the race among the 2024 GOP presidential nomination candidates whose names are not Donald Trump, Florida Gov. Ron DeSantis is Hawley’s leading competitor. To steal some of DeSantis’s thunder, Hawley appears ready not only to undo property and free speech rights, but also to bust a foundation of America’s international trade.
Last Tuesday, Hawley proposed the “Copyright Clause Restoration Act,” which his press release characterized as “strip[ping] woke corporations like Disney of special copyright protection.”
The bill would roll back the duration of copyright protection to 56 years — the protective period that Congress enacted in 1909. Currently, in the case of corporations owning copyrights, they last 95 years. In the case of individuals, copyright protection lasts 70 years after the author’s death.
Importantly, Hawley’s bill would compress those protections retroactively for the largest entertainment companies, such as the Disney company. And that is the whole point, as his press release singling out Disney made clear. Hawley’s bill is aimed directly at Disney’s copyright of its original Mickey Mouse.
In April, DeSantis got the anti-Disney campaign rolling to advance his own claims as a culture war gladiator. Recall that the entertainment giant, which operates Disney World in Orlando, criticized DeSantis’s “Don’t Say Gay” act that restricts discussion of sexual orientation and gender identity in schools.
DeSantis retaliated by immediately pushing through legislation rescinding the Disney World’s special municipal status. He probably didn’t anticipate that it also would prompt bond agencies to consider lowering Florida’s bond rating, a move that makes future borrowing more expensive for cities and towns.
Hawley’s one-upmanship risks greater harm to American business and global standing.
Property rights — and especially intellectual property rights — lie at the core of the U.S. economy and future economic prosperity. Property rights promote progress by rewarding creators and inventors and attracting capital investment. The retroactive expropriation of the rights belonging to Disney and other large corporations would take property rights without just compensation, a violation of the Constitution’s due process clause.
The government doing so in retaliation against one company also violates the First Amendment’s guarantee of free speech.
And that’s not all.
Hawley’s limit of 56 years would put the United States in violation of the Berne Convention, the major international copyright treaty that supports enforcement of U.S. copyright interests abroad and which requires signatories to enact copyright duration of not less than the author’s life plus 50 years.
Reasonable people can debate whether Congress’s decision to expand copyright duration was a good idea (and especially to add another 20 years in 1998) — we have our doubts — but there is no question that it played a critical role in gaining U.S. entry into the Berne Convention.
As global trade in creative arts and technology expanded in the mid-to-late 20th century, the United States took on a leadership role in the global intellectual property arena. A principal element of that strategy was to adapt its copyright law to gain entry into the Berne Convention. A series of amendments, including expanding copyright duration, enabled the U.S. to join the Berne Convention in 1989. Intellectual property accounts for almost 40 percent of all U.S. exports.
Violating the Berne Convention puts America’s billions of dollars in international sales of movies, books, music, computer software, and other creative arts at risk and undermines U.S. leadership in this important arena. Trade sanctions and financial penalties are easy to imagine were this bill to be adopted.
Elected officials who revere the Constitution and American business do not sell them out for political opportunism. Hawley’s “Copyright Clause Restoration Act” is the kind of publicity stunt that undermines both core Constitutional values and economic stability.
Hawley is undoubtedly aware of the ramifications of his bill on property rights and international trade. But political ambition beckons. His proposed legislation is a new low in his race to the bottom of Republican political demagoguery.
Peter S. Menell is the Koret Professor of Law at the University of California at Berkeley and co-author of “Intellectual Property in the New Technological Age.”
Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.