537 U.S. 186
In 1998 Congress enacted the Copyright Term Extension Act, which extended the duration of all federal copyrights by twenty years.1 For works created by identified natural persons the new term runs from creation until seventy years after the author's death.2 For anonymous works, pseudonymous works, and works made for hire the term is ninety-five years from publication or one hundred twenty years from creation, whichever expires first.3 The statute applied these extended terms both to copyrights already in existence and to works created after its effective date.4
Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain.5 They filed suit in the United States District Court for the District of Columbia seeking a declaration that the extension of existing copyrights exceeded Congress's power under the Copyright Clause and violated the First Amendment.6 On cross-motions for judgment on the pleadings the district court entered judgment for the Attorney General.7
The Court of Appeals for the District of Columbia Circuit affirmed.8 A majority of the panel upheld the statute against both challenges, while Judge Sentelle dissented in part on the Copyright Clause issue.9 The Supreme Court granted certiorari to address whether the extension of existing copyrights exceeds Congress's power under the Copyright Clause and whether the extension violates the First Amendment.10
Whether the Copyright Term Extension Act of 1998's extension of existing copyrights exceeds Congress's power under the Copyright Clause?11
The Copyright Clause empowers Congress to prescribe limited times for copyright protection and to secure the same level and duration of protection for all copyright holders, present and future.12 The only constitutional constraint is that the term be for a limited time, and the length of the copyright term is a policy judgment for Congress, not the courts.13 The CTEA's extension of the copyright term is a rational exercise of Congress' authority.14
No. The CTEA's extension of existing copyrights is a rational exercise of Congress's authority under the Copyright Clause because the statute applies the new terms to both existing and future copyrights, consistent with historical practice since the 1790 Act.15 Congress rationally sought to harmonize United States copyright terms with those of the European Union and to provide incentives for the dissemination of existing works still commercially viable from the 1920s and 1930s.16 The extension does not create perpetual copyrights but merely adds twenty years to the existing limited term.17
The extension of existing copyrights does not exceed Congress's power under the Copyright Clause.18
Related opinions on this issue
Justice Stevens dissented because the Copyright Term Extension Act is unconstitutional.19 The Framers intended copyright protection to be for a limited time.20 Repeated extensions have effectively created a perpetual copyright not authorized by the Copyright Clause.21
The retroactive extension of existing copyrights does not promote the creation of new works and therefore lies beyond Congress's power under the Clause.22 Stevens emphasized that the twin purposes of encouraging new works and adding to the public domain apply to copyrights as well as patents.23 Ex post facto extensions result in a gratuitous transfer of wealth from the public to authors and publishers without serving the constitutional purposes.24
Justice Breyer dissented on the ground that the economic effect of the CTEA is to create a copyright term that is effectively perpetual.25 The Act fails to promote the Progress of Science because it does not provide any significant incentive for the creation of new works.26 Instead the extension transfers wealth from the public to copyright holders without any corresponding benefit to society.27
Breyer stressed that the present statute primarily benefits holders of existing copyrights and imposes permissions requirements that inhibit dissemination of older works.28 The costs of extension outweigh any conceivable benefits under the Copyright Clause.29
Whether the Copyright Term Extension Act of 1998's extension of existing and future copyrights violates the First Amendment?30
Copyright law and the First Amendment are not in conflict.31 The Framers intended copyright to be an engine of free expression.32 The CTEA does not create a perpetual copyright.33 It merely extends the term for an additional twenty years.34 The extension is consistent with the First Amendment because it leaves ample room for free expression.35 The traditional contours of copyright protection are not altered by the CTEA.36 The fair use defense and the idea/expression dichotomy continue to provide substantial breathing space for speech.37
No. Petitioners separately argue that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment.38 Copyright law's built-in First Amendment accommodations, including the idea/expression dichotomy and the fair use defense, ensure that the CTEA does not violate the First Amendment.39 The CTEA does not alter the traditional contours of copyright protection.40 It merely extends the term of protection for a limited period.41
The extension is consistent with the First Amendment because it leaves ample room for free expression. The CTEA itself supplements these traditional First Amendment safeguards by allowing libraries and archives to reproduce copies of certain published works during the last twenty years of any term of copyright for purposes of preservation, scholarship, or research if the work is not already being exploited commercially.42 Title II of the CTEA exempts small businesses, restaurants, and like entities from having to pay performance royalties on music played from licensed radio, television, and similar facilities.43
The extension of existing and future copyrights does not violate the First Amendment.44
Related opinions on this issue
Justice Breyer dissented on the ground that the CTEA violates both the Copyright Clause and the First Amendment because its practical effect is not to promote but to inhibit the progress of science.45 The statute restricts traditional dissemination of copyrighted works.46 It interferes with efforts to preserve the nation's historical and cultural heritage.47
Breyer would review the statute more carefully because it regulates expression and imposes serious expression-related harms without any significant countervailing copyright-related benefit.48 The extension fails to provide rational support under any Clause-related objective.49