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© 2003, Gallagher & 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. |
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