Copyright Term Extension: Eldred v. Ashcroft

CRS Report for Congress
Copyright Term Extension: Eldred v. Ashcroft
Robin Jeweler
Legislative Attorney
American Law Division
This report examines the U.S. Supreme Court’s decision in Eldred v. Ashcroft.
Plaintiffs/Petitioners challenged the constitutionality under the Copyright Clause of a
law adding 20 years to the terms of existing and future copyrights. The law was upheld
by both the U.S. district court and the court of appeals considering it. Among the
questions before the Supreme Court was whether Congress may retrospectively extend
the term of copyright for existing copyrights; and, what role and impact, if any, does the
First Amendment have in determining the validity of a congressional extension of
copyright terms.
On January 15, 2003, the U.S. Supreme Court handed down its decision in Eldred
v. Ashcroft, 123 S. Ct. 769 (2003), in which petitioners challenged the constitutionality1
of the Sonny Bono Copyright Term Extension Act (CTEA). Passed in 1998, the
Copyright Term Extension Act added 20 years to the term of copyright for both subsisting
and future copyrights. By a vote of 7-2, the Court upheld the Act.
Background. Copyright Terms. In 1790, the First Congress created a copyright
term of 14 years for existing and future works, subject to renewal for a total of 28 years.
By 1909, both the original and the renewal term had been extended to 28 years, for a
combined term of 56 years. Additional extensions were enacted between 1962 and 1974.
When the current Copyright Act was enacted in 1976, Congress revised the format of
copyright terms to conform with the Berne Convention and international practice. Instead
of a fixed-year term, the duration of copyright was established as the life of the author
plus 50 years. In the case of an anonymous work, a pseudonymous work, or a work made
for hire, the term was 75 years from the first publication, or 100 years from the year of its
creation, whichever expired first.2 CTEA added 20 years to the term of subsisting and

1 P.L. 105-298.
2 Different copyright terms may apply to works created before and after 1978. For more detail
regarding the duration of copyright terms, see U.S. Copyright Office, Circular 15a, Duration of
Copyright: Provisions of the Law Dealing with the Length of Copyright Protection at
Congressional Research Service ˜ The Library of Congress

future copyrights to bring U.S. copyright terms more closely into conformance with those
governed by the European Union. Hence, the law currently provides a copyright for the
life of the author plus 70 years, while an anonymous, pseudonymous, or a work made for
hire endures for 95 years from publication or 120 years from creation.3
The plaintiffs/petitioners represented individuals and businesses that rely upon and
utilize materials in the public domain. They included a non-profit association that
distributes free electronic books over the Internet; a company that reprints rare out-of-
print books; and, a vendor of sheet music who sells, and a choir director who purchases,
music that is inexpensive because it is in the public domain.
The lower court held – without trial in a brief decision – in favor of the defendant,
the U.S. Attorney General, finding no constitutional infirmity in CTEA.4 The D.C. Court
of Appeals, which affirmed the district court, observed that the case “marks the first
occasion for an appellate court to address whether the First Amendment or the Copyright
Clause of the Constitution of the United States constrains the Congress from extending
for a period of years the duration of copyrights[.]”5
Issues. In an opinion written by Justice Ginsburg, the Court addresses two issues:
First, whether the CTEA’s extension of existing copyrights exceeds Congress’ power
under the Copyright Clause; and, second, whether the CTEA’s extension of existing and
future copyrights violates the First Amendment.6
Does the CTEA’s extension of existing copyrights exceed Congress’ power under the
Copyright Clause? The Copyright Clause of the Constitution, Art. I, § 8, cl. 8 authorizes
Congress “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.” The Court reviewed the history of Congress’ creation and extension of
copyright – and patents – going back to the First Congress and concluded that:
History reveals an unbroken congressional practice of granting to authors the benefit
of term extensions so that all under copyright protection will be governed
evenhandedly under the same regime.7
The Court found that CTEA’s addition of twenty years to the term of existing copyrights
is fully consistent with this historic practice. Hence, it rejected the petitioners’ argument
that the “limited Time” requirement requires a “forever fixed” or “inalterable” copyright
term. Ultimately, the Court found that the unbroken congressional practice for over two

2 (...continued)
[ h t t p : / / www.l o c.go v/ copyr i gh t / c i r cs/ c i r c15a.pdf ] .
3 17 U.S.C. § 302. See also, 17 U.S.C. § § 303, 304, 305.
4 Eldred v. Reno, 74 F. Supp.2d 1 (D.D.C. 1999).
5 Eldred v. Reno, 239 F.3d 372, 373 (D.C.Cir. 2001).
6 123 S. Ct. 769, 777-78.
7 Id. at 778.

centuries of applying adjustments to copyright term to both existing and future works “is
almost conclusive.”8
The Court then considered whether CTEA is a rational exercise of congressional
authority under the Clause. It found that the Act falls squarely within the type of
judgments that Congress typically makes and is well within its legislative domain. The
Court noted that much of the impetus for the extension was a desire to harmonize U.S.
copyright law with the practices of the European Union, the goal of which is to promote
international protection of U.S. copyrights. In addition, the legislative history of the Act
indicated a rationally-based judgment that longer terms would encourage copyright
holders to invest in the restoration and public distribution of their works. Although the
Court felt compelled to defer to the legislative prerogative to implement the Copyright
Clause, it did not endorse the wisdom of the extended term:
In sum, we find that the CTEA is a rational enactment; we are not at liberty to
second-guess congressional determinations and policy judgments of this order,
however debatable or arguably unwise they may be. Accordingly, we cannot conclude
that the CTEA – which continues the unbroken practice of treating future and existing
copyrights in parity for term extension purposes – is an impermissible exercise of
Congress’ power under the Copyright Clause.9
The Court then considered several “novel” arguments advanced by the petitioners,
all of which they found to be unpersuasive. Namely, that permitting Congress to extend
existing copyrights allows it to evade the “limited Times’ constraint by creating
effectively perpetual copyrights through repeated extensions; and, that Congress may not
extend an existing copyright absent new consideration from the author. The Court
dismissed the former with the observation that a “regime of perpetual copyrights” was not
the situation before it.
With respect to quid pro quo or “new consideration,” the petitioners argued that the
public receives nothing in exchange for the term extension, which violates the intent of
the preamble to the Clause to “promote the Progress of Science and useful Arts[.]”
Although the Clause itself does not explicitly require “originality” in a copyrighted work,
the requirement is implicit by virtue of granting protection to the works of “Authors and
Inventors.” The U.S. Supreme Court has called originality the “sine qua non of
copyright[.]”10 Plaintiffs argued that the CTEA’s term extension does not promote
originality, but merely increases the value of work already created. And, it violates the
requirement that copyrighted subject matter be original when it extended the term of
subsisting copyrights. With respect to the Clause’s charge to Congress to “promote”
originality and creativity, the Court found that the constitutional command is satisfied by
establishing a “system” of copyright. With regard to the requirement that copyrighted
material be original, the Court found there to be no nexus between the originality
requirement for granting a copyright and the duration of the copyright term.

8 Id. at 785. (Citation omitted.)
9 Id. at 782-83.
10 Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 345 (1991).

The Court also rejected any similarity between the quid pro quo behind the grant of
patent and copyright. In exchange for the monopoly grant supporting a patent, the
inventor discloses to the public information regarding an invention with substantial utility.
In contrast, [f]or the author seeking copyright protection, ... disclosure is the desired
objective, not something exacted from the author in exchange for the copyright.”11
Is CETA a content-neutral regulation of speech that fails inspection under the
heightened judicial scrutiny appropriate for regulation under the First Amendment?
Although the Court acknowledged that the D.C. Circuit Court of Appeals “spoke too
broadly when it declared copyrights ‘categorically immune from challenges under the
First Amendment,’”12 it nevertheless affirmed the Court of Appeals holding. The Court
observed that the proximity in time between the Framers’ adoption of the Copyright
Clause and the First Amendment evidences their compatibility. Both the “idea/expression
dichotomy” and the “fair use” defense are “built-in First Amendment accommodations.”13
The idea/expression dichotomy precludes the grant of copyright to ideas and facts, only
to a form of expression of them. And the fair use defense allows the public to use
copyrighted expression in certain circumstances, such as criticism, comment, news
reporting, teaching, scholarship or research.14 The Court concluded that when Congress
has not altered the traditional contours of copyright expression, further First Amendment
scrutiny is unnecessary.
The Dissent. Justices Breyer and Stevens filed dissenting opinions. Justice
Breyer’s dissent is premised on the contention that CTEA’s 20-year extension is
essentially an economic regulation that has the practical effect of making the copyright
term “virtually perpetual.” Because the monopoly grant inherent in copyright does have
an effect on free dissemination of speech, Justice Breyer would apply more rigorous
scrutiny to the law’s rationality. Finding that the law bestows only private, not public
benefits; that it undermines the expressive values that the Copyright Clause embodies;
and, that it cannot be justified by any significant Clause-related objective, he concludes
that it “falls outside the scope of legislative power that the Copyright Clause, read in light15
of the First Amendment, grants to Congress.” He concludes that “this particular statute
simply goes too far.”16
Unlike Justice Breyer’s economically-based finding that CTEA goes “too far,”
Justice Stevens based his dissent on a legal analysis which is at odds with the majority.
He concludes that any extension of an existing copyright exceeds Congress’ authority
under the Copyright Clause. With respect to the history of Congress’ “unbroken pattern”
of applying copyright extensions retroactively, he asserts that “the fact that Congress has
repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty
to invalidate an unconstitutional practice when it is finally challenged in an appropriate

11 123 S. Ct. at 787.
12 Id. at 789-90.
13 Id. at 788.
14 17 U.S.C. § 107.
15 123 S. Ct. at 813-14.
16 Id. at 813.

case.”17 The constitutionally-mandated quid pro quo for the grant of a limited copyright
monopoly is public access through the public domain. Therefore, an extension of an
existing copyright is, in his view, merely a “gratuitous transfer of wealth from the public
to authors, publishers, and their successors in interest.”18
Implications. Eldred is an important case, both for its precedential value
interpreting the Copyright Clause and the policy implications for the duration of
copyright. The power of a copyright holder to control protected material is great. It
grants the owner exclusive right to control reproduction, distribution, performance,
display, and adaptions of the protected work. The right to control adaptions is in and of
itself a broad right. It permits the holder to extend his reach to works that do not merely
duplicate the original but borrow critical elements from it. It was the right to control
adaptive works that lead the estate of Margaret Mitchell to challenge publication of a
parody of Gone with the Wind entitled The Wind Done Gone.19
Critics of copyright term extensions contend that they are advocated by large
corporate interests with an eye to profits and ever tighter control over protected works to
the detriment of the public. They argue that because it already extends beyond the life of
the author, the current term exceeds that necessary to encourage creation and permit
creators to exploit the value of their work. Rather than promoting creativity, withholding
material from the public domain diminishes the richness of the nation’s cultural and
intellectual life. The decision of the U.S. Supreme Court in Eldred indicates that
challenges to the wisdom of copyright term duration will be addressed in the Congress,
not the courts.

17 Id. at 797.
18 Id. at 793.
19 Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) (The court lifted the
lower court’s injunction against publication and distribution of The Wind Done Gone finding that
it was unlikely that the plaintiffs would overcome the defendant’s fair use defense to