© 2003, Dawsey Co., LPA
April 2003

Extending the “life” of characters like Mickey Mouse, the U.S. Supreme Court, in Eldred v. Ashcroft, upheld Congress’ right to extend the term of U.S. copyrights. The plaintiff owned a web site offering free access to books and short stories who had hoped to add new material as it passed into the public domain. The case was closely watched by media enterprises such as Walt Disney Co., who potentially faced the imminent loss of copyright protection for some of its intellectual property.

In a seven justice majority, Justice Ginsburg rejected the petitioner’s position that Art. I, § 8, cl. 8 of the Constitution, granting Congress the power to fix limited times for the protection of intellectual property, also acted to fix copyright term length to that which was in place when a copyright was first registered. The plaintiffs made the argument that while new works could be made subject to the current standard of life of the author plus seventy years, that existing works should not have their copyrights extended. Observing that past changes in copyright terms have always applied to both existing and new copyrights, the Court found that the permissibility of such extension is consistent with constitutional “text, history, and precedent.” Nonetheless, the extent of protection under copyright is now truly breathtaking when compared, for example, to patent protection. Especially with younger authors, we must now consider that the routine life of a copyright will extend near, or even beyond, a hundred years from creation.

The Court also rejected the view that the 1998 Copyright Term Extension Act (CTEA) was an impermissible restriction of free speech. Noting that the Copyright Clause and the First Amendment were adopted closely together in time, the Court found implicit evidence that the Framers’ viewed limited copyright monopolies as consistent with free speech principles. The facts that copyright protects only expression and not ideas, and the existence of the “fair use” defense, evidence harmony between these principles. The court pointed out that the First Amendment protects one’s right to his or her own speech, but bears less heavily on the right to repeat other people’s speeches.

The majority also concluded that this extension, created by the CTEA, lay well within the sorts of legislative authority intended by the Constitution. In an interesting sidelight, the Court noted the importance of keeping U.S. copyright law in harmony with that of foreign countries, as such harmony “may provide greater incentive for American and other authors to create and disseminate their work in the United States.” The Court noted that a key factor in the passage of the CTEA was a 1993 European Union directive establishing a baseline of life plus 70 years to copyright and denying this longer term to the works of a non-EU country whose laws did not provide for this same extended term. This “international” approach to U.S. Constitutional interpretation is extremely interesting, and may portend more attempts by the Court to fit U.S. constitutional law into a framework that will give U.S. inventors and businesses maximal protection under international agreements.