Document Type

Article

Publication Title

Loyola of Los Angeles Law Review

Abstract

The Copyright Term Extension Act of 1998 (CTEA) counts as one of the most controversial pieces of legislation to pass Congress in many a moon. Its chief consequence is to extend the effective term of all new and existing copyrights by twenty years. Prior to its passage, works authored by an identifiable natural person enjoyed protection for a term of life plus fifty years. Works-for-hire, anonymous works, and pseudonymous works received protection either for one hundred years from creation or seventy-five years from publication, whichever was shorter. The CTEA tacks twenty years onto each of these two periods. To its critics, of whom I count myself as one, the CTEA looks like a massive giveaway of public domain resources for private use. This widespread academic consensus has spurred Lawrence Lessig, now of Stanford Law School, to lead the charge against the Act in Eldred v. Ashcroft, which is now pending before the Supreme Court. In this case, the Circuit Court for the District of Columbia upheld the CTEA against two forms of constitutional challenges. The first insists that, in light of its structure and purpose, the Copyright Clause does not confer on Congress the power to enact the CTEA. The second argues that in any clash between the Copyright Clause and the First Amendment, the Copyright Clause comes out second best. The CTEA restricts speech that, in the ordinary course of events, would have been free. I have a few observations on both scores. The upshot, I should add, is not entirely to my liking, for I think that under the current law the government is likely to win, when, as a matter of principle, it ought to lose. More concretely, the culprit lies in the standard for judicial review, which cashes out to a rational basis standard for cases under the Copyright Clause. If that test is used, then virtually any advantage that one can assign to the CTEA will allow a compliant Court to conclude that this statute will "promote the Progress of Science and useful Arts..." and thus, fall within Congress's power under the Copyright Clause. Moreover, so long as the Copyright Clause is not used to stifle criticism of existing works-which has never happened- then it appears that the expansion of property protection will not interfere with the freedom of speech, which is implicitly defined in such a way as to accommodate all valid intellectual property rights. Neither of these justifications for the CTEA will survive, however, a higher level of judicial scrutiny.

First Page

123

Volume

36

Publication Date

2002

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