Introduction

The Congress shall have the Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.1

The constitutional provision respecting copyright, also known as Copyright Clause, holds in itself the philosophy behind the concept of copyright. It delegates the power to grant a right in exchange for a original work, or its expression, with a specific objective. A novel interpretation of the Clause, in light of the Sonny Bono Copyright Term Extension Act of 1998, brought forth to the public forum the potential unconstitutionality - or just plain unwiseness - of Congress's enactment. Indeed, Public Domain was deemed endangered, as the Act, with its retroactive extension of copyrights terms, threatened to eternalize the limited monopoly that copyright constitutes. Five years later and the Supreme Court would affirm the decisions of the District Court and the Court of Appeals for the District of Columbia Circuit. The next morning, the New York Times Editorial was entitled The Coming of Copyright Perpetuity.2

This essays attempts to give a deeper understanding of the issue at hand and its larger implications. It will provide a basic overview of the relevant statutory frameworks - the Copyright Term Extension Act, the First Amendment to the US Constitution and the Copyright Clause; and case law which constituted precedent to this case will also be addressed. The arguments used by both petitioners and respondent will be cross-analysed in light of the Supreme Court's opinion and respective dissent. This should allow for a satisfactorily answer to the questions posed to the Court. We conclude by addressing the potential ramifications that both the Act and this case may have, at a socio-cultural, economic and political level to the US and the rest of the World.

A Look Through the Case

The Copyright Term Extension Act (CTEA or Act) of 1998 extended copyright terms, in most cases, for 20 years, acting both retroactively and prospectively. For works published before January 1, 1976 and still in copyright on October 27, 1998, the term was extended to 95 years. For works authored by individuals after 1976, the term was extended to equal the life of the author plus 70 years. Works-for-hire, anonymous or pseudonymous works had their term extended to the shortest of 95 years from publication, or 120 years from creation.

In January 1999, following the Act's implementation, the petitioners, composed of various individuals and businesses that relied upon speech in the public domain3 for their work, filled a facial challenge4 to CTEA. They argued that the retroactive aspect of CTEA exceeded Congress' power under the Copyright Clause, and that the retroactive and prospective aspects of CTEA violated the Free Speech and Press Clauses of the First Amendment.5 The District Court for the District of Columbia dismissed the complaint. The petitioner's appeal to the Court of Appeals for the DC Circuit was also dismissed, with the court rejecting both the First Amendment and Copyright Clause claims. The Supreme Court of the United States granted certiorari6, limited to the first two questions presented in the petition:

Did the DC Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?
Is a law that extends the term of existing and future copyrights "categorically immune from challenge[] under the First Amendment?7

The petitioner's argument was threefold: CTEA's retroactive extension of existing copyrights, they argued, exceeded Congress's power under the Copyright Clause.8 Additionally, both retroactive and prospective extensions of copyright terms were not immune from First Amendment scrutiny.9 Finally, because CTEA's retroactive and prospective extensions of copyright terms are inseverable, §102 of CTEA should be struck entirely.10 The respondent argued that the limited times requirement does not preclude Congress from applying new copyright terms to future and existing copyrights alike.11 CTEA's consistency with the First Amendment was also asserted, because of precedent (Harper & Row) and built-in First Amendment accommodations.12

Justice Ginsburg delivered the opinion of the Court, in which Justice Stevens and Justice Breyer dissented: the Copyright Clause empowers Congress to prescribe limited times for copyright protection and to secure the same level and duration of protection for all copyright holders, present and future. Also, the CTEA's extension of existing and future copyrights does not violate the First Amendment. Thus, it was held, in placing existing and future copyrights in parity in the CTEA, Congress acted within its authority, and did not transgress constitutional limitations.13

The Copyright Clause argument

The petitioner's argument that the CTEA exceeds Congress' power under the Copyright Clause depends on the assumption that the Clause's preamble14 (the objective) is inseparable from the means part15 - which, incidentally, the CTEA violates with its retroactive extension. Thus, they argue, retroactively extended copyright terms are not Limited, nor do they Promote the Progress of Science16, as they allow for Congress to perpetually extend a copyright term. And because they grant a right for nothing, the quid pro quo17 requirement of the Clause is violated.18 Parallel to this, the Originality requirement of copyright is also not met, as the retroactive extension applies to works already created.19

The respondent counter-argued that the petitioner's construction was foreclosed by constitutional text, which it contradicted (as well as case law)20, as the Clause does not distinguish between subsisting and future copyrights21 - which historical practice confirmed, it was argued.22 Petitioner's concerns about perpetual protection were deemed unfounded, as Congress only passed significant changes to copyright law five times.23 This contrasts with petitioner's claims of eleven changes in the last 40 years. Finally, the respondent asserted, CTEA was a necessary and proper exercise of Congress's power. This was constructed on Congress' longstanding practice of providing authors with the benefit of subsequent enactments24, CTEA's incentives for copyright holders to restore and disseminate their works25, and CTEA's impact on international trade, which promotes progress in the United States (by harmonizing the US And E.U. Copyright laws).26

The Court's opinion that CTEA's extension of existing copyrights does not exceed Congress' power under the Copyright Clause is based on a literal interpretation of the text: indeed, in defining limited Times, Webster's Dictionary is quoted. The spirit of the law, however, seems to be disregarded: surely the Framers used limited Times in a limiting sense: if Congress is given the power to endlessly extend terms, is that not an effective circumvention of the Clause? That being said, Congress's historical practice does seem rational:27 the mere adding of 20 years to the 1976 Act does not change anything substantially, the Court asserts. The question seems to be, do eleven extensions in 40 years, however minor, show a clear trend? The respondent thinks not, as only two of those were significant. A paper by Tom W. Bell shows otherwise, highlighting how the duration of general copyright terms has steadily increased since the 1790 Act's 28 years to CTEA's 95 years.28 Extrapolated to future years, this trend shows that copyright terms will continue to be extended indefinitely, thus perpetuating this limited monopoly. This merely points toward Congress' unwiseness in passing the Act, not proving its unconstitutionality - The wisdom of Congress's action, however, is not within our province to second guess.

The other arguments put forth by the respondent, economic benefits and incentives to the restoration of old works seem unfounded: as clearly shown by Justice Breyer, only 2% of works aged 55 to 75 years retain any commercial value. What little economic benefit remains is taken from the hands of consumers of works to the owners of their respective copyrights. The claim that changes in technology, medical science and society calls for extended terms, to accommodate for higher life expectancies of author descendants, is fallacious. By comparing life expectancy versus copyright term extension trends in the US over the last 100 years, one can see how there is no proportionality. The originality and quid pro quo counter-arguments put forth by the Court are indefensible: a work in the Public Domain before CTEA's implementation is not original: as such, an extension of its copyright is not granted as a counter-measure to something. Finally, Justice Breyer, dissenting, agreed with the petitioner's claim that the so-called international harmonization the CTEA brings is virtually non-existent: the statute does not create a uniform American-European term with respect to the lion's share of copyrighted works.29

Thus, it would seem, most arguments put forth by the respondent and agreed to by the Court seem invalid. While thoroughly addressed by the petitioner's case, the respondent's arguments are met with little resistance by the Court, which seems to arbitrarily apply literal and semantic interpretations of the relevant texts at will. As such, we conclude, CTEA's retroactive extension of terms exceeds, in fact, Congress's legislative power.

The First Amendment argument

Petitioners next argue that CTEA's retroactive extension is not immune from First Amendment scrutiny. Thus Harper & Row would not exempt copyright statutes from First Amendment review30; in the same line, the Turner standard should allow for regulation of speech scrutiny.31 If so, and because CTEA fails to advance an important governmental interest"32, and "burdens substantially more speech than necessary33, intermediate scrutiny should be allowed, under the Free Speech and Press Clause. The respondent's argument was twofold: a magazine that published verbatim excerpts of President Ford's not-yet published autobiography in violation of Harper & Row's copyright invoked First Amendment rights. The Court's assertion that the First Amendment does not require further restrictions on copyright, it was argued, applied to Eldred v. Ashcroft as well, thus eliminating the need for intermediate scrutiny.34 Secondly, the Copyright Clause itself has First Amendment accommodations built-in: since only the expression of an idea is protected, any facts and ideas are immediately and freely available to the public; additionally, Congress offered a special exemption for [ ] orphaned works during the last 20 years of the CTEA's copyright term.35 For these reasons, petitioner's novel request for intermediate scrutiny should be rejected.36

In addressing this issue, the Supreme Court rejected petitioner's plea that for uncommonly strict scrutiny on a copyright scheme that incorporates its own speech-protective purposes and safeguards. The basis for such judgement was the inference that, because the Copyright Clause and First Amendment were adopted close in time, in the Framer's view, copyright's limited monopolies are compatible with free speech principles.37 This is no more true than the preposterous claim that, because the Thirteenth Amendment was passed after the original Bill of Rights, the Founders, by omission, viewed slavery as compatible with the humanistic principles upon which the Constitution was written. In any case, there are, in fact, accommodations for the First Amendment, as pointed out by the Court. These include allowing libraries, archives and similar institutions to 'reproduce' and 'distribute, display, or perform in facsimile or digital form' copies of certain published works 'during the last 20 years of any term of copyright...for purposes of preservation, scholarship, or research'. Title II of the CTEA exempts small businesses from having to pay performance royalties on music played from licensed radio, television, and similar facilities.38

The question here must be whether there is proportionality between the free speech provisions included and the burden of speech associated with the Act. The answer would be no: the feeble provisions above do not greatly add to fair use, and can not possibly substitute the loss to the Public Domain, which will not have any new works added in the next 20 years. Taken into consideration that: the 1976 Act, described by respondent and Court as quasi-identical in nature to the CTEA, was the product of careful thought that led to the convergence of US copyright law with the Berne Convention; that the so-called international harmonization is virtually non-existent, as are any economic benefits that may arise; we are forced to conclude that CTEA should at least be the target of intermediate First Amendment scrutiny by the lower court.

Conclusion

While not unconstitutional per se, the CTEA seems to be an especially unwise enactment. There is no congruence nor proportionality in an Act that effectively impedes any work from entering the Public Domain in the next 20 years. What little economic benefit is brought to owners of copyrights is heavily outweighed by the burden to free speech that it carries. The deciding factor in the Supreme Court's decision appears to have been the Harper & Row precedent, which grants CTEA immunity from First Amendment scrutiny. Were it not for that, it seems unlikely that the Court could refute these facts: CTEA substitutes quid pro quo for quid pro nil39; disregards originality of works; only at the surface harmonizes US and international copyright law; brings a 0.33% increase in economic incentive for authors.40 It is an irrational exercise of legislative power by the Congress.

It would be easy to point out to how US copyright law is now unprotected against corporate lobbying. Aside from these, only author's heirs are likely to benefit, but at what cost? An example has been given by the Great Hormond Street Hospital, in England. The Hospital, owner of the copyright for some Peter Pan's plays and a musical in the UK has argued, in a US court, that Emily Somma, an author of a sequel to Peter Pan which is in the Public Domain, must not publish a book about the Peter Pan character in the US. This is indicative of the breadth that copyright law now possesses. There is no apparent public benefit, be it social, economic or cultural, that has been argued by either the respondent or the Court. This leads to the inexorable conclusion that the Sonny Bono Copyright Term Extension Act is a statutory failure that should, at the very least, be reviewed for unconstitutionality.

References

1. United States Constitution, Article I, Section 8
2. Editorial, The Supreme Court Docket; The Coming of Copyright Perpetuity, The New York Times, January 16, 2003
3. Brief for Petitioners, Eldred v. Ashcroft, 2002, p.3
4. By resorting to the doctrine of substantial overbreadth, one of two possible First Amendment challenges
5. Brief for Petitioners, p.7
6. Certiorari Cer`ti*o*ra"ri, n. So named from the emphatic word certiorari in the Latin form of the writ, which read certiorar volumus we wish to be certified. (Law). A writ issuing out of chancery, or a superior court, to call up the records of a inferior court, or remove a cause there depending, in order that the party may have more sure and speedy justice, or that errors and irregularities may be corrected. It is obtained upon complaint of a party that he has not received justice, or can not have an impartial trial in the inferior court.
   The Collaborative International Dictionary of English v.0.48. 1913 Webster
7. Brief for Petitioners, p.i
8. Brief for Petitioners, p.11
9. -----p.34
10. -----p.48
11. Brief for the Respondent, Eldred v. Ashcroft, 2002, p.8
12. -----p.39
13. Opinion of the Court, Eldred v. Ashcroft, 2003, pp.7-28
14. To promote...Progress
15. For limited Times
16. Brief for Petitioners, pp.18-19
17. The quid pro pro doctrine is used in copyright to signify that authors receive something (a limited monopoly) for something (the writing)
18. Brief for Petitioners, p.23
19. -----p.32
20. Brief for the Respondent, p.18
21. -----p.9
22. -----p.11
23. -----p.23
24. -----p.30
25. -----p.34
26. -----p.37
27. [J]ustice, policy, and equity alike forb[id] that an 'author which had sold his [work] a week ago, be placed in a worse situation that the author who should sell his work the day after the passing of [the] act.'
    Representative Huntington at the time of the 1831 Act, quoted by Justice Ginsburg
28. Tom W. Bell, Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, U. Cincinnati, 2001
    http://www.tomwbell.com/writings/(C)_Term.html
    http://www.tomwbell.com/writings/(C)Esc.html#n*
    Accessed 30/06/2005
29. Justice Breyer's Dissent, Eldred v. Ashcroft, 2002
30. Brief for Petitioners, p.34
31. -----p.37
32. -----p.40
33. -----p.45
34. Brief for the Respondent, p.40
35. -----p.43
36. -----p.45
37. Opinion of the Court, ch.III
38. ibid
39. Something for nothing
40. Appendix to the Opinion of Justice Breyer, Eldred v. Ashcroft, 2003, ch.B