Key Documents: Section I. Journalism, Media, and the Law - Intellectual Property Protection

Introduction

The U.S. Constitution guarantees the opportunity of retaining a copyright in intellectual creations by giving Congress the power to “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.” The term limited times suggests that the framers of the Constitution saw the need for all original copyrights to lapse at some point and fall into the public domain—a time when these works become open to use by anyone without obtaining permission from the creator. One key issue in intellectual property law revolves around what exactly the Constitution intended by the term limited times and what amounts to a fair duration for a creator's copyright to exist.

The creator's copyright in a work was initially limited to 14 years with the right to a 14-year renewal period by the first Congress back in 1790. Those numbers jumped to a 28-year copyright with a 28-year renewal option by 1909, and The Copyright Revision Act of 1976 dramatically upped copyright limits to the length of the creator's lifetime plus an additional 50 years. Then, almost immediately, Congress passed the Sonny Bono Copyright Extension Act in 1978 that pushed copyrights to 70 years beyond the creator's lifetime. Eric Eldred, who originally planned to put Robert Frost poems online once they fell into the public domain in 1998, challenged the Bono Act in court.

Eldred believed the Bono Act ran contrary to the Constitution's edict of limited times for copyrights and the First Amendment promise of free expression. In Eldred v. Ashcroft, Justice Ruth Bader Ginsburg wrote the majority opinion that affirmed the constitutionality of systematically prolonging the copyright period. She argued that the Constitution's limited times wording did not imply an inflexible amount of time and that the term had never been clearly defined. The Court also upheld the right of Congress to repeatedly extend the copyright period and keep the intent of limited times, so long as the copyright duration remains “confined within certain boundaries” and not endless.

—Glenn Lewis Volume Editor

ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL 537 U.S. 186 (2003)

Justice Ginsburg delivered the opinion of the Court.

This case concerns the authority the Constitution assigns to Congress to prescribe the duration of copyrights. The Copyright and Patent Clause of the Constitution, Art. I, §8, cl. 8, provides as to copyrights: “Congress shall have Power … [t]o promote the Progress of Science … by securing [to Authors] for limited Times … the exclusive Right to their … Writings.” In 1998, in the measure here under inspection, Congress enlarged the duration of copyrights by 20 years. Copyright Term Extension Act (CTEA), Pub. L. 105–298, §102(b) and (d), 112 Stat. 2827–2828 (amending 17 U. S. C. §§302, 304). As in the case of prior extensions, principally in 1831, 1909, and 1976, Congress provided for application of the enlarged terms to existing and future copyrights alike.

Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain. They seek a determination that the CTEA fails constitutional review under both the Copyright Clause's “limited Times” prescription and the First Amendment's free speech guarantee. Under the 1976 Copyright Act, copyright protection generally lasted from the work's creation until 50 years after the author's death. Pub. L. 94–553, §302(a), 90 Stat. 2572 (1976 Act). Under the CTEA, most copyrights now run from creation until 70 years after the author's death. 17 U. S. C. §302(a). Petitioners do not challenge the “life-plus-70-years” time span itself. “Whether 50 years is enough, or 70 years too much,” they acknowledge, “is not a judgment meet for this Court.” Brief for Petitioners 14.1 Congress went awry, petitioners maintain, not with respect to newly created works, but in enlarging the term for published works with existing copyrights. The “limited Tim[e]” in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend. See ibid. As to the First Amendment, petitioners contend that the CTEA is a content-neutral regulation of speech that fails inspection under the heightened judicial scrutiny appropriate for such regulations.

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