Recent Developments in Copyright Law: Copyright Term Extension Upheld as Constitutional

By Kirsten Murphy, Silha Fellow

Congress sought to extend the term of copyrights in 1998, by passing the Copyright Term Extension Act (CTEA), also known as the Sonny Bono Copyright Term Extension Act. On Jan. 15, 2003, in Eldred v. Ashcroft, 123 S.Ct. 769 (2003), the Supreme Court upheld the constitutionality of the Act. As a result, film classics such as "Snow White," "The Wizard of Oz" and "Gone with the Wind" will not pass into the public domain.

The Act, which amends the 1976 Copyright Act, extends copyright protection from the creator's life plus 50 years to the creator's life plus 70 years for most works, and to 95 years for anonymous and corporate works. Thus, many works created in the early 20th century, set to expire within the next few years, are now protected from unauthorized use for another twenty years.

In a 7 to 2 decision, Justice Ruth Bader Ginsburg, writing for the majority, upheld the U.S. Court of Appeals (D.C. Cir.) decision that Congress acted constitutionally in extending copyright protection, pursuant to its Article I, Section 8 power to secure for "limited times" the rights of creators to their works. Congress has discretion, Ginsburg wrote, to determine the length of copyright protection, so long as it specifies a period of time.

The petitioners, a group of scholars, publishers and Internet archivists led by online publisher Eric Eldred, argued that the extension makes copyright protection effectively perpetual, in violation of the "limited times" provision of the Constitution. Petitioners specifically challenged the Act as applied to existing copyrights, contending that the Act cramps future creativity and deprives the public of works created in the period from 1923-1943, which should now fall into the public domain.

The majority rejected petitioners' arguments, citing Congress's reasons for passing the Act. These include efforts to harmonize U.S. copyright law with a 1993 European Union directive, which establishes a life-plus 70 year period of copyright protection, as well as encouraging creative activity and the restoration of old movies. The wisdom of these policy arguments is not subject to judicial review, wrote Ginsburg. "We are not at liberty to second-guess congressional determinations and policy judgments of this order, however, debatable and arguably unwise they may be," she wrote.

Petitioners also challenged the Act on First Amendment grounds, arguing that the Act restricts freedom of expression, which the Court should review under a heightened standard of scrutiny. The Court rejected this argument, finding that copyright law contains built-in First Amendment protections by distinguishing between ideas and expression, covering only the latter and by establishing a "fair use" defense available to users of a copyrighted work. The "fair use" defense provides limited protection for use of copyrighted material in several circumstances including criticism, reporting, teaching and scholarship.

However, Ginsburg recognized that the First Amendment and copyright laws must, to some degree, work in tandem: "We recognize that the D.C. Circuit spoke too broadly when it declared copyrights 'categorically immune from challenges under the First Amendment,'" she wrote. Justices John Paul Stevens and Stephen G. Breyer filed separate dissents.

Justice Stevens sided with the petitioners on the issue of the copyright clause "limited times" prescription. The Act, wrote Stevens, contradicts the purpose of the copyright clause by granting ex post facto extensions, which results in gratuitous enrichment of copyright heirs and successors in interest. Furthermore, argued Stevens, extending existing copyrights does not encourage the creation of new work; it simply continues to reward already existing work. Stevens admonished the majority, writing: "By failing to protect the public interest in free access to the products of inventive and artistic genius - indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause - the Court has quitclaimed to Congress its principal responsibility in this area of law."

Justice Breyer agreed with the petitioners that the CTEA makes copyrights "virtually perpetual" and stressed the importance of the interrelationship between the copyright clause and the First Amendment. The statute is both an economic regulation and a regulation of expression and "what may count as rational where economic regulation is at issue is not necessarily rational when we focus on expression - in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture," wrote Breyer.

Online learning and education will suffer under the Act, urged Breyer, as computer databases will not be able to include certain cultural content from the early 20th century. Breyer wrote that excluding this content would condemn it to "a kind of intellectual purgatory from which it will not easily emerge."

The decision was applauded by supporters of the Act, including entertainment giants Disney, AOL Time Warner and the Motion Picture Association of America. The corporations will now continue to receive royalties for any works that they own that were created in the early 20th century.

The Act prevents the expiration of the original Mickey Mouse copyright, and many commentators have mocked the CTEA as an effort to save the cartoon mouse from the public domain.

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This page contains a single entry by cla published on November 9, 2009 1:33 PM.

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