Supreme Court Decision Upholds Extension of Copyrights

Date: Feb 05, 2003

In a major victory for the film and music industries, the United States Supreme Court ruled in Eldred v. Ashcroft, No. 01-618, that Congress did not violate the Copyright clause of the U.S. Constitution or the First Amendment when it extended copyright terms by 20 years. In a 7-2 ruling, with Justice Ruth Bader Ginsburg writing for the majority, the Supreme Court held that Congress was acting within its "domain" when it passed the Sonny Bono Copyright Term Extension Act of 1998 ("Bono Act"). The case was originally filed by Eric Eldred, the owner of an Internet publishing company in New Hampshire. Eldred, who scanned old literary works onto his website, argued that the Bono Act violated Article I, ยง 8, clause 8 of the Constitution, which provides that "Congress shall have Power "[t]o promote the progress of Science and useful arts, by securing for limited times to authors" the exclusive right to their "writings." Other publishers ultimately joined the suit.

The Bono Act was not the first time Congress lengthened the term of copyrights. Congress extended copyright protections in 1831, 1909, and 1976. The 1976 Copyright Act created a copyright term for individual works that provided protection from the work's creation until 50 years after the authors death. For anonymous works, pseudonymous works, and works made for hire, the 1976 Act provided a copyright term of 75 years from publication or 100 years from creation, whichever expired first. These provisions applied to all works published after January 1, 1978; for all works with existing copyrights as of January 1, 1978, the Act created a copyright term of 75 years from the date of publication.

The Bono Act extended the copyright term for all existing and future copyrights by 20 years. For individual works the term was extended to 70 years after the death of the creator. For anonymous works, pseudonymous works, and works made for hire, the Bono Act provided copyright protection for 95 years from the date of publication or 120 years from the date of creation, whichever expires first. Like the 1976 Act, the Bono Act applies to all works not published as of January 1, 1978. For all works published before that date, the Bono Act extended the copyright term to 95 years from the date of publication.

The Constitution affords Congress the power to give authors "the exclusive right" to their writings "for limited times." Petitioners asserted that the term "limited times" must be given its plain meaning; extending copyrights so long after the death of the author did nothing to "promote the progress of science and useful arts," as provided by the Constitution. This argument ultimately failed, as the majority concluded that the definition of the term "limited" was the same at the time of the Framing of the Constitution, as it is today: "confin[ed] within certain bounds, restrain[ed] or circumscribe[d]." When Congress extended the term for copyright protection, the term did not cease to be "limited" just because it was 20 years longer, the majority ruled. Furthermore, the Court saw no effort by Congress to "evade the 'limited times' prescription" when it passed the Bono Act.

The majority articulated a preference of deferring to Congress in the area of intellectual property. In a testament to history, the majority asserted that "the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes" was not an "impermissible exercise of Congress' power." The Court noted that Congress passed the Bono Act based, in part, on "projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works." Further, the Court recognized the importance of ensuring that American authors receive the same copyright protection in Europe as their European counterparts.

The petitioners argued that the Bono Act reflected "very bad policy," but the Court ruled that the Supreme Court is "not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be." The majority was satisfied that the Act was "inside the domain the Constitution assigns" to Congress.

The Court flatly rejected the petitioners' First Amendment argument saying, that the copyright law contains adequate "built-in" First Amendment protections, including the "fair use" doctrine. Noting that the petitioners were not seeking to publish original works, Justice Ginsburg wrote that, "[t]he First Amendment securely protects the freedom to make--or decline to make--one's own speech; it bears less heavily when speakers assert the right to make other people's speeches."

Justices John Paul Stevens and Stephen Breyer each authored individual dissents strongly criticizing the Bono Act on grounds that it created "virtually perpetual" copyrights, not the limited terms envisioned by the framers of the Constitution.

The Bono Act brought American copyright law into line with the copyright law of the European Union. Without the extension provided by the Bono Act, many famous copyrights, including Walt Disney's Mickey Mouse, would have run out in the next few years. Critics of the Bono Act say that would be a good thing; the decision is seen as a loss by some scholars and the Internet publishing industry. Scanners of out-of-print works, like Eldred, had hoped to build a free digital library where people around the world could access older works at little or no cost. These publishers argued that digital re-publication is the only financially feasible way for people to obtain out-of-print and obscure works. Given the importance of U.S. intellectual property in terms of trade, however, the ruling is an important tool for the entertainment industry, as it fights piracy and other activities, like peer-to-peer file sharing on the Internet, that harm its revenues.

For additional information, please contact Sheila Millar at millar@khlaw.com