Copyright term extension upheld. (Copyright Corner).

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), signed into law on October 27, 1998, extended the term of copyright from life of the author plus 50 years to life plus 70. Eld red did not challenge the basic extension of the term but rather the retroactivity provision, which applies 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 is 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. Eric 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 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) The 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 Ruth Bader 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 that 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 that test.

There were two strong dissents in this case. Justice John Paul 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 pointed out that economic reward to the copyright holder is a secondary consideration; benefits to the public are primary. 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, Stevens asked, 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 Stephen G. Breyer disagreed with the majority; he said 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 their dissemination. Justice Breyer also recognized the difficulties that libraries and other users of works will encounter during the additional 20-year term. He cited economic studies that indicate that only 2 percent of works are still economically viable between the 55th and 75th years of the copyright term. An even smaller percentage likely will be viable from the 75th to the 95th year. Therefore, for less than 2 percent 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 table below shows 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 opinion 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 Congress addressed the underlying policy considerations. 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, media companies will again lobby Congress to extend the term of copyright for 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.) "Copyright Corner" in Information Outlook, April 2002.

(3.) Eldritch Press website, see http://209.11.144.65/eldritchpress/. "Here are free accessible books. Read them and go in peace." is the first statement readers see.

(4.) 74 ESupp.2d I (D.D.C. 1999).

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

(6.) http://eon.law.harvard.edu/openlaw/eldredvashcmft/supct/amici/librari es.pdf.