Supreme Court to decide if term extension is constitutional - Copyright Corner - Brief Article

Information Outlook, June, 2002 by Laura Gasaway

On February 19, 2002, the U.S. Supreme Court agreed to hear the appeal from the U.S. Court of Appeals for the District of Columbia in Eldred v. Ashcroft (1). the case challenging the constitutionality of the 1998 amendment, which extended the term of copyright by an additional 20 years (2).

After extensive lobbying from the copyright owner community, particularly by the motion picture studios, the Sonny Bono Copyright Term Extension Act (CTEA) extended the term of copyright from life of the author plus 50 years to life plus 70 years. One of the primary reasons for copyright protection is that it "incents creativity." How does term extension incent a dead author to produce more works? Some have referred to this as the Shirley MacLame defense-"I will create after I am dead."

Mr. Eldred, the owner of Eldritch Press, takes public domain works, digitizes them, adds hypertext references and then makes them available for free on the Web(3). He sued the government alleging that the CTEA is unconstitutional since it delays when works pass into the public domain, including some very old works from the early 1920s that Eldred wanted to publish on the Web. The federal district court ruled against Eldred and upheld the constitutionality of term extension(4). When Eldred appealed to the Court of Appeals for the District of Columbia, he lost again.

The U.S. Constitution, in Article I, Section 8, Clause 8 states, "Congress shall have the power to promote the progress of science and the useful arts by securing for limited times to authors and inventors the rights to their respective writings and discoveries." This clause embodies three important policies: the promotion of learning, protection of the public domain and access to copyrighted works by the public. If a Congressional enactment is not directed toward these goals, then it is outside the scope of Congressional power. The Supreme Court has consistently held that the purpose of copyright is not a single dimension. It has two aspects--the economic interest of the author and the promotion of learning (i.e., the public's interest).

What is truly at stake in this case is protection of the public domain, which is absolutely critical to scholarship and research as works are built on earlier works. Such publications form the building blocks for creative individuals, writers, etc (5). Jonathan Tasini, president of the National Writer's Union and named plaintiff in New York Times v. Tasini (6) said three important things about why he opposed term extension and believed that it should be held unconstitutional. According to Tasini, human knowledge should be shared, cultural expression belongs to the public and the intellectual wealth of a nation cannot be locked up as the property of a few.

The Court of Appeals ignored an important Supreme Court case dealing with the patent part of the constitutional clause, Graham v. John Deere (7). In this case the Court noted that the clause is both a grant of power and a limitation. "The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby." This is precisely what the D.C. Circuit did. It upheld the expansion of the copyright term without considering the copyright policies for the promotion of learning, protection of the public domain and public access to works. Nor did it explain why the clause should be read to limit Congressional power to enact patent legislation but imposes no such limit on the power to enact copyright legislation. The term of copyright has been increased several times over the years. These increases were based on different policy considerations. The CT EA, however, was a simple extension of the term to already existing works. The purpose of copyright is to promote the creation of new works, not the preservation of the copyright in older ones.

The constitutional clause permits protection for a limited term. If one measures the copyright term against an ordinary life, practically nothing produced during one's lifetime will pass into the public domain during one's life. A millennium is also a limited time, but not when measured against a typical life. Jack Valenti of the Motion Picture Association of America has been quoted as saying that Congress could extend protection to one day short of eternity and still be within the constitutional provision. No wonder Tasini and others criticize what has become corporate copyright and not an author's right.

Footnotes:

(1.) 255 F.3d 849 (D.C. Cir. 2001).

(2.) See "copyright comer," January, 1999.

(3.) To view the Eldritch Press Web site, see http://www.eldritchpress.org/. Here are free, accessible books. Read them and go in peace." This is the first statement a reader sees on the web site.

(4.) 74 F.Supp.2d 1 (D.D.C. 1999).

(5.) See "Copyright Corner," July 2001.

(6.) 533 U.S.483 (2001). See "copyright Corner," September and October, 2001.