Intellectual Property Newsletter
Publishers Challenge Constitutionality of Copyright Term Extension Act
Congress passed the Sonny Bono Copyright Term Extension Act (CTEA) in 1998. This revision to U.S. copyright law extends the term of protection for both existing (i.e., already created) and future (i.e., yet to be created) copyrighted works. In general, under the CTEA, the term of copyright protection for most works runs from creation until 70 years after the author’s death.
In January 1999, a lawsuit was filed challenging the constitutionality of the CTEA. After a series of appeals, the lawsuit was ultimately decided by the U.S. Supreme Court in January 2003.
Once a creative work’s term of copyright protection expires, the work is said to be in the “public domain.” Works in the public domain are available for copying and other forms of use by anyone interested in doing so.
By extending the term of copyright protection by 20 years, the practical effect of the CTEA was to prevent a number of works from entering the public domain as they would have under the 1976 Act. For example, some works that would have originally entered the public domain in 1998 are now unavailable for copying until 2018.
In this case, the plaintiffs consisted of individuals and businesses whose products or services utilized works in the public domain. Plaintiffs challenged the CTEA’s constitutionality on two grounds: (1) the Copyright Clause, and (2) the First Amendment.
The Copyright Clause Argument
Pointing specifically to the “limited times” language of the Copyright Clause, the plaintiffs contended that the CTEA’s extension of existing copyrights exceeded Congress’ constitutional power. Although they conceded that the “life plus 70 years” term qualified as a “limited time” with respect to future copyrights, the plaintiffs argued that when applied to existing copyrights, the term did not qualify as “limited.” However, the Supreme Court disagreed. Instead, the Court held that Congress has the authority to extend the terms of existing copyrights.
First, the Court found that the CTEA complied with the “limited times” directive of the Copyright Clause. In so doing, the Court considered the following:
- Text: This included definitions of the word “limited” from dictionaries in place at the time of the Constitution’s framing. The Court’s textual analysis revealed that “a time span appropriately ‘limited’ as applied to future copyrights does not automatically cease to be ‘limited’ when applied to existing copyrights.”
- History: The Court’s historical analysis revealed “an unbroken congressional practice of treating future and existing copyrights [equivalently] for term extension purposes.”
- Precedent: The constitutional provision authorizing Congress’ power to grant copyrights similarly authorizes Congress’ power to grant patents. Finding the symmetry relevant, the Court examined past congressional extensions of the duration of patent protection. Early courts (including the Supreme Court) had determined that the Constitution did not bar congressional expansion of existing patents.
Next, the Court found that in enacting the CTEA, Congress rationally exercised its legislative authority under the Copyright Clause. Citing an earlier case, the Court deferred to Congress’ judgment, stating, “It is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors…in order to give the public appropriate access to their work product.”
The Court also found persuasive Congress’ intent in enacting the CTEA: namely, to comply with a European Union directive. By extending the copyright term to life plus 70 years, “Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.”
The First Amendment Argument
Plaintiffs’ second constitutional challenge rested on the First Amendment. Like the Copyright Clause Claim, the Court ultimately rejected this claim. The Court held that the CTEA’s extension of existing and future copyrights did not violate the First Amendment. Instead, the Court found that the “CTEA itself supplements traditional First Amendment safeguards.” Citing an earlier case, the Court stated, “The Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” The Court pointed to copyright law’s built-in First Amendment accommodations:
- Copyright law draws a distinction between ideas and expression. Only the expression of an idea, and not the idea itself, may be protected by copyright.
- The “fair use” defense permits the public use of facts and ideas contained within a copyrighted work. Further, under certain circumstances, the defense authorizes the use of expression itself.
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