Copyright term extension upheld

Information Outlook, April, 2003 by Laura Gasaway

On January 15, 2003, the U.S. Supreme Court ended speculation and debate about the constitutionality of the 1998 20-year expansion of the term of copyright to existing works. In Eldred v. Ashcroft, (1) the Court upheld congressional authority to determine the "limited times" for which copyright may be available as provided in the U.S. Constitution. Just because the span of years for protection is expanded and applied retroactively does not mean it ceases to meet the limited times restriction in the Constitution. (2)

The Sonny Bono Copyright Term Extension Act (CTEA), signed into law on October 27, 1998, extended the term of copyright from life of the author plus 50 years to life plus 70. Eld red did not challenge the basic extension of the term but rather the retroactivity provision, which applies to all works still under copyright. The Eldred appeal addressed only two issues: the retroactivity of term extension and whether a law that extends the term of copyright is immune from First Amendment challenges. Based solely on year of publication, only works published before 1923 in the United States are clearly in the public domain. In fact, it will be the end of 2018 before any other published work enters the public domain, and that is only if there are no further extensions of the term for existing works.

Although Eldred's name is the one associated with the case, other plaintiffs include a nonprofit Internet distributor of rare books, a sheet music distributor, a choir director, and a film preservation company. Eric Eldred, the owner of Eldritch Press, takes public domain works, digitizes them, adds hypertext references, and then makes them available free on the Web. (3) Plaintiffs sued for a declaratory judgment that the CTEA was unconstitutional. The federal district court ruled against Eldred and upheld the constitutionality of term extension. (4) He appealed to the Court of Appeals for the District of Columbia and lost again. (5) The Special Libraries Association has been involved with this case from the first and, along with 15 other library associations, developed an amicus brief on the side of Eldred (6) for the Supreme Court appeal.

In an opinion authored by Justice Ruth Bader Ginsburg, the Court found that Congress had acted properly when it voted to extend the term of copyright, even retroactively, as it has done on several previous occasions. Further, extensions to existing copyrights are still for limited times; it does not mean that such terms cease to be limited times if they are later expanded.

On the second issue, the Supreme Court held that the D.C. Circuit spoke too broadly when it declared that copyrights were "categorically immune from challenge under the First Amendment." Although the opinion is not generally favorable to the library position, this part of the holding is actually very good news. Eldred claimed that the CTEA was a content-neutral regulation of speech that fails "heightened scrutiny," the so-called mid-level test for determining the constitutionality of a statute. The Court refused to apply "strict scrutiny" (the highest-level test) or even heightened scrutiny to the First Amendment claim. Instead, it applied the lowest-level test, "rational basis," and found that this act of Congress, even applied retroactively, satisfied that test.

There were two strong dissents in this case. Justice John Paul Stevens argued that Congress had exceeded its authority in enacting the CTEA because of policies that favor the public domain and the limited times provision of the Copyright Clause of the Constitution. Stevens pointed out that economic reward to the copyright holder is a secondary consideration; benefits to the public are primary. Publishers argued that extending the term of copyright contributed to the preservation of older works, which Stevens found to be a particularly specious argument. Are not libraries and archival collections, Stevens asked, more likely to preserve works in the public domain than they are to go through the permissions process to preserve works still under copyright? Older films are often turned over to the Library of Congress for preservation; the copyright owner apparently has little interest in doing so, even though the copyright term has not expired.

Justice Stephen G. Breyer disagreed with the majority; he said that the CTEA should be reviewed using heightened scrutiny, but he also found that the statute failed even the rational basis test for three reasons. First, the significant benefits bestowed by term extension are private and not public benefits. Second, the CTEA seriously threatens to undermine the expressive values that the Copyright Clause embodies. Third, there is no justification for term extension in any significant Copyright Clause-related objective.

Breyer also stated that the claim about enacting the CTEA to ensure international uniformity was very weak, as was the concern about incentives to create copyrighted works. As he reasoned, a deceased author is not motivated by a longer copyright term to create additional works, and the purpose of copyright is to encourage creation of copyrighted works, not to promote their dissemination. Justice Breyer also recognized the difficulties that libraries and other users of works will encounter during the additional 20-year term. He cited economic studies that indicate that only 2 percent of works are still economically viable between the 55th and 75th years of the copyright term. An even smaller percentage likely will be viable from the 75th to the 95th year. Therefore, for less than 2 percent of the works under copyright, all users will face the prospect of seeking permission and paying royalties. The permissions management will be difficult and expensive. Royalties may also be quite high.