Copyrights and the Constitution

April 1, 2002

By: Mary Ann Alsnauer

The United States Supreme Court has agreed to hear the case of Eldred v. Ashcroft, a case that seeks to challenge the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act. Much like the court's decision in New York Times, Co., Inc. v. Tasini, 121 S.Ct. 2381 (2001), the outcome of the case will continue to have an impact in the literary and cultural realm as the court decides whether the continued extensions of copyright protection enacted by Congress, particularly those over the last half century, can withstand constitutional scrutiny.

The power of Congress to regulate copyrights is derived from Article I, Section 8 of the Constitution which provides that: "The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive"

Right to Respective Writings and Discoveries.

Initial terms of copyright protection were far more limited than the terms that apply today. In 1790, the First Congress provided authors copyright protection for a term of fourteen years with the option of renewing the copyright for an additional fourteen years. The founding fathers were concerned that owners of copyrights not be given what would amount to a monopoly, believing that society was benefited by the free flow of ideas. Between 1790 and 1909, only two further extensions were enacted resulting in a combined term of 56 years. However, since about 1960, Congress has continued to extend the term of copyright protection and in the 1998 legislation, extended the term to the life of the author plus seventy years for works by individuals and works made for hire in which ownership rested with a corporation were given a term of ninety-five years.

The Eldred case was brought by plaintiff Eric Eldred, who hosts a website that publishes literary works which have fallen back into the public domain, i.e. their copyrights have expired. Various other individuals and entities who use, restore or sell art, film or literature which has returned to the public domain joined Mr. Eldred as plaintiffs. The plaintiffs' main argument (a First Amendment theory was given short shrift by both the District and Circuit Courts) will be that the current extension of copyright terms is beyond Congress' enumerated powers under the Copyright Clause of the Constitution. The plaintiffs rely on the "limited Times" language of the Copyright Clause to argue essentially that the length of the present "terms" granted by Congress approach permanent status in contravention of Constitutional authority. While the plaintiffs lost both at the trial and appellate level, the Supreme Court's willingness to hear the case has given them new hope that their arguments may ultimately prevail. Proponents for both sides are closely watching the issue.

The case also highlights the extraordinary impact that intellectual property rights have come to have in present day society, far removed from the way in which such rights were viewed two hundred years ago. Today, intellectual property rights are important corporate assets, which can generate billions of dollars of revenues for a corporation. Companies invest heavily in both the development and protection of such rights. Many companies do not hesitate to spend tens or even hundreds of thousands of dollars in legal fees simply to obtain an injunction against infringement of such rights knowing that preserving their exclusive rights to such intellectual property will more than return the investment of such fees. Little wonder that these companies have a direct interest in extending their copyrights as long as possible and also exert their energies in lobbying for legislation that will continue to protect these important corporate assets. For example, the '98 Act at issue in Eldred prevented Disney from losing the exclusive rights to Mickey Mouse, which otherwise would have expired in 2003. Mickey is now "safe" for an additional twenty years, or at least as long as the Supreme Court doesn't rock the boat.

Given the investment that individuals or companies have in creating such copyrighted works, extended protection of their copyright in these works seems appropriate. So what's the argument against these extensions? The plaintiffs argue that the unencumbered flow of material and ideas in the public domain is critical to preserving these works and the public's access to them. They maintain that the lengthy term of copyright ownership which now exists risks the loss of thousands of little known, but nonetheless valuable works. For example, the plaintiffs' brief to the Supreme Court made reference to the fact that of the 10,027 books published in 1930, all but 174 were now out of print. However, because of the twenty year extension of copyright terms, entities such as the plaintiffs which could have archived these works online as early as 2005, must now wait an additional twenty years to access these works. The further delay makes tracking the owners of those rights that much more difficult and presents the very real possibility that, by the time the copyright term has expired, the works will be lost or forgotten.

Obviously, the ultimate decision of the Supreme Court will be greatly anticipated next fall and, should the plaintiffs prevail, the impact for many works, which benefited from the extensions of the '98 Act will indeed be significant.