COPYRIGHT TERM EXTENSION UPHELD

 

April 2003

 

 

            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) was signed into law on October 27, 1998, and it extended the term of copyright from life of the author plus 50 years to life plus 70.    Eldred did not challenge the basic extension of the term by 20 years but rather the retroactivity provision which applied 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 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.  Mr. 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 Mr. 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]  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 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 which 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 the rational basis test.

There were two strong dissents in this case.  Justice 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 also pointed out that economic reward to the copyright holder is a secondary consideration; benefits to the public are primary.  Interestingly, 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 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 Breyer disagreed with the majority and believed 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 the dissemination of them.  Justice Breyer also recognized the difficulties that will be encountered  by libraries and other users of works during the additional 20-year term.  He cited economic studies which indicate that only 2% of the works are still economically viable between the 55th and 75th year of the copyright term.  Likely, an even smaller percentage will be viable from the 75th to the 95th year.  Therefore, for less than 2% 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.

One thing that was clear from the majority opinion is that the Supreme Court was not determining the correctness of the underlying policy for this term extension.  Instead, it focused on Congressional power to do so.  Congress is the body to consider the policy issues for legislation, not the Court. 

The following chart depicts the term of copyright from the first U.S. copyright statute to the present:

YEAR

TERM

RENEWAL

1790

14 years

14 years

1831

28 years

14 years

1909

28 years

28 years

1978

Life + 50 years

X

1998

Life + 70 years

X

 

The majority pointed out that the term of copyright had been extended several times before and applied retroactively to works still under copyright.  What was missing from the analysis was the fact that each of the other expansions of the term of copyright had come about as a part of a total revision of the Copyright Act, so the underlying policy considerations were addressed by Congress.  The CTEA, in contrast, was only an extension of the term and not a total revision of the Act.

What is the likely impact of this case?  It is a bit too soon to know, but clearly, Congressional power to extend the term of copyright retroactively was upheld.  Does this mean that in about 2015 or 2016 movie and recording companies will again lobby Congress to extend the term of copyright in their works?  Perhaps, but the library community, and maybe the general public more than in 1998 will be ready to argue forcefully against such an action as poor public policy.


[1]               537 U.S. ______, 123 S. Ct. 769 (2003)

 

[2]           Prior to the Supreme Court appeal, this case was discussed in the “Copyright Corner” in Information Outlook, April 2002.

 

[3]           To view the Eldritch Press website, see http://209.11.144.65/eldritchpress/.  “Here are free, accessible books. Read them and go in peace.”  This is the first statement a reader sees on the website.

 

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

 

[5]           255 F.3d 849  (D.C. Cir. 2001).

 

[6]             http://eon.law.harvard.edu/openlaw/eldredvashcroft/supct/amici/libraries.pdf.