Sonny Bono Copyright Term Extension Act (CTEA) Upheld by Supreme Court

January 15, 2003 – Firm News

SUMMARY OF MAJORITY HOLDING The decision handed down by the Supreme Court in Eldred v. Ashcroft, No. 01-618, upholding the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA) is a victory for future and existing copyright holders. The Court held in a 7-2 opinion issued on January 15, 2003, that the decision to increase the term of existing copyrights to seventy years was within Congress' discretion and was consistent with the Constitution's Copyright Clause and the First Amendment. MAJORITY HOLDING - EXPLAINED Justice Ginsburg delivered the majority opinion of the Court in which Justices Rehnquist, O'Connor, Scalia, Kennedy, Souter and Thomas joined. In a divided opinion the high court held that the CTEA's extension of the term of copyright in existing works for an addition twenty years (for a total of 70 years from the author's death in most cases) is merely the continuation of an historical trend to extend copyright protection that does not run afoul of the United States Constitution. Petitioners in the case (business owners who depended on using copyrighted works that have entered the public domain) had argued that an extension of the term of copyright for an existing work from its existing fifty year term to a seventy year term could not "promote the Progress of Science and useful Arts" as reflected by the language of the Constitution's Copyright Clause. Specifically, Petitioners alleged that the legislation exceeded Congress' power to secure to authors for "limited Times" the exclusive rights to their works - the constitutional basis for U.S. copyright protection. In addition, the petitioners advanced the somewhat more tenuous proposition that the CTEA ran afoul of the First Amendment by restricting free speech protections. At the root of the lawsuit was the petitioners' contention that copyright law serves mainly as a quid pro quo - a bargain between authors and society. Because copyright protection was granted based on a bargained for exchange, i.e. exclusive rights for a period of time in exchange for the creation of new material, extending the term of copyright grants copyright holders more than what society bargained for. In a thirty-two page opinion, the Supreme Court disagreed, finding that Congress has historically treated existing and future copyright holders equally. The Court agreed with the Court of Appeals for the District of Columbia finding that the extended copyright term, though significantly longer, remains "limited" and does not cease to be limited simply because it applies to existing works. The Court wrote,

"[the] CTEA is a rational exercise of the legislative authority conferred by the Copyright Clause. On this point, the Court defers substantially to Congress . . . The CTEA reflects judgments of a kind Congress typically makes, judgments the Court cannot dismiss as outside the Legislature's domain.".

The Court buttressed its reasoning in part on the European Union's recent directive to its members to establish a copyright terms of 70 years, and made passing reference to "demographic, economic and technological changes" that influenced Congress' determination that longer copyright terms are socially desirable. The Court concluded that petitioners failed to show that the controversial legislation crossed "a constitutionally significant threshold" that earlier extensions of copyright law (enacted in 1831, 1909 and 1976) did not. Turning to the First Amendment issue, the Court dismissed Petitioner's arguments that longer copyright terms encroached on free speech, citing copyright law's long-time express and implied accommodation of the First Amendment, by, for example, in permitting certain types of fair use for critique of copyrighted works and deeming ideas uncopyrightable. POLICY IMPLICATIONS The Supreme Court's decision addresses the larger struggle between what some see as the protection for copyright owners verses the benefits to society served by freedom to use creative works freely that has pitted high powered interested groups such as Disney against others who claim that Disney, and other's stockpile of copyrighted intellectual property amounts to a stranglehold on culture. On a policy level, the Court found that whatever bargain society struck with copyright holders in granting exclusive rights in works, that bargain included subsequent renewals of the copyright term. DISSENTING OPINIONS Justice Stevens In a twenty-two page dissent, Justice Stevens condemned the "retroactive extension" of protection as a windfall to copyright owners. Justice Stevens dismissed the majority's reasoning as based on a classic non-sequitur, writing, "Authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have not equitable claim to increased compensation for doing nothing more." Justice Breyer Justice Breyer was similarly critical of what he described as the longest extension of copyright since the Nation's founding - a "virtually perpetual" extension that imposes increased and unwarranted costs on consumers. Justice Breyer concluded that the significant benefits the statute provides are private not public and threatens to undermine the expressive values that the Copyright Clause embodies. Please click on the link above for the full text decision of Eldred v. Ashcroft. About the author: Amy C. Sullivan is an attorney with Oblon, Spivak, McClelland, Maier & Neustadt, P.C. of Alexandria, Virginia and focuses her practice in the areas of copyright and trademark litigation. Ms. Sullivan's articles on copyright protection have appeared in the AIPLA's Quarterly Journal and IP Law & Business (formerly IP Worldwide).