The U.S. Constitution has a special provision allowing Congress to enact copyright and patent statutes. Article one, section eight, clause eight reads: ‘‘The Congress shall have the power . . . . [t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’’ (Copyright Clause). According to the Supreme Court, the Copyright Clause grants Congress a limited power; the clause provides an incentive for creative persons, but its main purpose is to benefit the public (Feist Publications, Inc. v. Rural Telephone Service Co., Inc. ).
Copyright protection has changed greatly during the history of the United States. The first Congress passed the first Copyright Act in 1790. That statute allowed fourteen years of protection with the option of renewing protection for another fourteen years. The act only protected books, charts, and maps from persons producing close copies. Over time Congress has expanded copyright protection in many ways, including by covering many different types of works (such as songs and movies), protecting them from more types of competition (such as translations, sequels, and public performances), giving authors the entire term without needing to request renewal, and extending the length of protection. In 1998, Congress passed the Copyright Term Extension Act (CTEA), which changed the copyright term for most works from fifty years after the author died to seventy years after the author died. The extension covered not only works created after the CTEA, but those already in existence (referred to as ‘‘retrospective extension’’). The CTEA was nicknamed the ‘‘Mickey Mouse Act’’ because it prevented Walt Disney’s famous cartoon from losing copyright protection. Like Disney, many of the other businesses that lobbied Congress to pass the CTEA had already successful works about to lose copyright protection.
Many businesses and nonprofit organizations specialize in distributing works that are no longer under copyright protection. Several of them sued, claiming that retrospective extension is beyond Congress’s power under the Copyright Clause and violates the First Amendment. In Eldred, the Supreme Court rejected both of these claims.
Discussing the Copyright Clause, the Supreme Court declared that ‘‘a page of history is worth a volume of logic.’’ The CTEA is constitutional because earlier statutes had included retrospective extensions.
Second, the Court rejected arguments about the purpose of the Copyright Clause. Economists had demonstrated that the change in term length had no appreciable value to an author deciding whether to write a new work or to a publisher deciding whether to print a new work. Opponents of the act argued that the Copyright Clause’s sole purpose was to provide an incentive for the creation of new works; the act failed to provide such an incentive, and therefore, was beyond Congress’s power. Additionally, during the long period when copyright protection had included an optional renewal term, most authors had not filed for renewal. The dearth of renewals demonstrates that most works quickly stop producing money for their authors and publishers. However, many works are ‘‘orphans,’’ that is, their authors and publishers are not exploiting them, but members of the public cannot use them either, because they cannot locate these authors and publishers to obtain copyright permission. Extending the copyright term increases the number of orphan works and the number of years that these orphan works are used by no one. In sum, opponents of the CTEA argued that it placed much too high a burden on public use of works in comparison to the incentives provided to authors and publishers.
The Supreme Court refused to conduct its own balance of the CTEA’s burdens and benefits. Instead, the Court deferred to Congress’s judgment about needed incentives; it also approved Congress’s decision to base policy on all of the creation of new works, incentives for distributing old works, and international harmonization of copyright law.
Regarding the First Amendment challenge, the Court called copyright ‘‘the engine of free expression.’’ Additionally, the Court felt that works under copyright protection did not present First Amendment problems for two reasons. First, certain publicly beneficial uses (such as criticism and parody) are allowed without authors’ permission (called ‘‘fair use’’). Second, copyright only protects expression (the way the author explains his point); it does not prevent others from reusing facts or ideas.
Eldred demonstrates Supreme Court deference to Congress. However, the limit of the Court’s deference is not clear because the suit only involved retrospective extension.
References and Further Reading
Cases and Statutes Cited
See also Content-Neutral Regulation of Speech; Fair Use Doctrine and First Amendment; Intellectual Property and the First Amendment; Satire and Parody and the First Amendment