Article I, Section 8, Clause 8:

[The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Even if a work is copyrightable, Congress may only grant copyright for limited times. Throughout American history, Congress has repeatedly lengthened copyright terms, with those extensions usually applying both prospectively and retroactively to works still under copyright.1 In Congress’s first Copyright Act of 1790, as under the Statute of Anne, copyright persisted for fourteen years, with the possibility of a fourteen-year renewal term.2 Under current law, copyright in a work created by an individual author lasts for the life of that author, plus an additional seventy years.3

In Eldred v. Ashcroft, the Court addressed whether the 1998 Copyright Term Extension Act (CTEA), which retroactively extended existing copyright terms by twenty years, violated the Intellectual Property (IP) Clause’s “limited Times” requirement.4 Eldred held that a term of life of the author plus seventy years was a “limited” time, which required only that the term be “confine[d] within certain bounds,” and not that the term must be fixed once granted.5 On this point, the Court relied heavily on the historical practice of retroactive copyright extensions to inform its interpretation of the IP Clause.6

Satisfied that the CTEA complied with the “limited Times” requirement, the Court held that further judicial review was limited to whether the CTEA was “a rational exercise of the legislative authority conferred by the Copyright Clause.” 7 In this determination, the Court “defer[red] substantially” to “congressional determinations and policy judgments.” 8 Applying that standard, the Court found Congress’s desire to conform American copyright terms to international norms sufficed as a rational basis.9 Eldred further rejected arguments that the CTEA “effectively” amounted to a perpetual copyright, protected non-original works, or failed to promote the progress of science,10 reiterating “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” 11

In 2012, Golan v. Holder extended Eldred's deferential approach to the IP Clause’s limitations.12 Golan addressed whether Congress could, consistent with the IP Clause, grant copyright to works already in the U.S. public domain.13 Motivated by compliance with international copyright treaties, Congress passed the Uruguay Round Agreements Act (URAA)14

, § 101, 108 Stat. 4809, 4814–15 (1994). in 1994 to “restore” copyright to certain foreign works that had never been protected by copyright in the United States.15

The Supreme Court rejected the argument that the URAA failed to “promote the Progress of Science” because it did not encourage the creation of new works.16 The Court held that providing incentives for new works was “not the sole means” Congress may use to advance the spread of knowledge, and Congress could rationally conclude that a “well-functioning international copyright system” would encourage the dissemination of existing works.17 Ultimately, Golan held that it is for Congress to “determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the [IP] Clause.” 18

Footnotes

1

See generally Eldred v. Ashcroft, 537 U.S. 186, 194–96 (2003) (reviewing history of congressional extensions of copyright term).

2

See Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124 (1790); 8 Anne c. 19 (1710).

3

17 U.S.C. § 302(a). Anonymous works, pseudonymous works, and works made for hire have a copyright term of 95 years from the date of publication or 120 years from the date of creation, whichever is less. Id. § 302(c). Works published before 1978, if still covered by copyright, have a term lasting for 95 years from the date of publication. See Eldred, 537 U.S. at 196; 17 U.S.C. § 304(a), (b).

4

Eldred, 537 U.S. at 199.

5

Id. at 199.

6

Id. at 200–04.

7

Id. at 204.

8

Id. at 205, 207

9

Id. at 205–08.

10

Id. at 208–15.

11

Id. at 212–13.

12

Golan v. Holder, 565 U.S. 302 (2012).

13

Id. at 308.

14

The URAA implemented the Marrakesh Agreement of 1994, which transformed the General Agreement on Tariffs and Trade (GATT) into the World Trade Organization (WTO), into U.S. law. See Pub. L. No.

103-465

, § 101, 108 Stat. 4809, 4814–15 (1994).

15

Golan, 565 U.S. at 314.

16

Id. at 324–27.

17

Id. at 326–27.

18

Id. at 325 (quoting Eldred v. Ashcroft, 537 U.S. 186, 222 (2003)).