Minnesota Intellectual Property Review Volume 5 Issue 2 Article 2 2004 Unwise or Unconstitutional?: The Copyright Term Extension Act, the Eldred Decision, and the Freezing of the Public Domain for Private Benefit Arlen W. Langvardt Kyle T. Langvardt Follow this and additional works at: https://scholarship.law.umn.edu/mjlst Recommended Citation Arlen W. Langvardt & Kyle T. Langvardt, Unwise or Unconstitutional?: The Copyright Term Extension Act, the Eldred Decision, and the Freezing of the Public Domain for Private Benefit, 5 MINN. INTELL. PROP. REV. 193 (2004). Available at: https://scholarship.law.umn.edu/mjlst/vol5/iss2/2 The Minnesota Journal of Law, Science & Technology is published by the University of Minnesota Libraries Publishing. LANGVARDT 05/12/2004 12:52 PM Unwise or Unconstitutional?: The Copyright Term Extension Act, the Eldred Decision, and the Freezing of the Public Domain for Private Benefit* Arlen W. Langvardt** and Kyle T. Langvardt*** I. INTRODUCTION Assume that in 2004, a person wishes to borrow and make use of the expression contained in a work that was created and published in 1922. Copyright protection on the work took effect in 1922, in accordance with the Copyright Act of 1909.1 Now consider these questions: 1. Must the prospective user obtain a license—i.e., a grant of permission—from the copyright owner in order to avoid being liable for infringement when the use occurs? 2. What if the facts are the same, except that 1923 was the year of creation, publication, and copyright commencement? The answers to the above questions relate directly to the public policy and constitutional issues on which this article will focus. We begin the identification of those issues by offering the following answers to the article’s opening quiz: 1. No, a license is not necessary. Some law students would be quick to argue that this is a trick question because there is no copyright owner. This is because there is no longer a valid copyright on the 1922 work. Even assuming that the copyright owner properly renewed the copyright in 1950, the copyright expired at the end of 1997.2 The 1922 work is therefore in the * This article is published online at http://mipr.umn.edu. ** Professor of Business Law, Indiana University. *** First-year student, University of Chicago Law School (Fall 2004). 1. Copyright Act of 1909, ch. 320, §§ 9-10, 35 Stat. 1075, 1077-78 (1909) (amended by the Copyright Act of 1976 and currently codified at 17 U.S.C. §§ 101-1101 (2000)) [hereinafter Copyright Act of 1909]. 2. The 1909 Act called for a basic copyright duration of 28 years from publication of the work, with a 28-year renewal term available if the renewal procedure was properly completed. Copyright Act of 1909, supra note 1, §§ 23- 24. The 1909 Act was extensively overhauled by the Copyright Act of 1976. Copyright Act of 1976, 17 U.S.C. §§ 101-1101 (amended in various respects LANGVARDT 05/12/2004 12:52 PM 194 MINNESOTA INTEL. PROPERTY REVIEW [Vol. 5:2 public domain and any person may freely use it regardless of the use’s nature or purpose.3 2. Yes, a license is necessary (assuming that the copyright owner renewed the copyright in 1951 and that copyright law’s fair use doctrine4 would not protect the use at issue). The copyright on the 1923 work continues to exist and will run through 2018. Copyright protection of the 1922 work and the 1923 work both arose pursuant to the Copyright Act of 1909, but the 1922 copyright has expired and the 1923 is still in force.5 What accounts for the drastically different durations of the copyrights on the works described in the above hypotheticals? The Copyright Act of 1909 established a maximum copyright term of 56 years from the time of publication of the copyrighted work.6 Therefore, when copyright protection was secured on the 1922 and 1923 works, the copyright owners would have expected that their copyrights would run until 1978 and 1979, respectively. The duration rules changed, however, more than five decades after the two works acquired copyright protection. The 1922 work received only the benefit of the 1976 since enactment; current version codified as 17 U.S.C. §§ 101-1101 (2000)) [hereinafter Copyright Act of 1976]. The Copyright Act of 1976 provided that if a work remained under copyright as of January 1, 1978, the 28-year renewal term called for by the 1909 Act would instead be a 47-year renewal term— meaning that the total copyright duration would be 75 years rather than 56 years. 17 U.S.C. § 304 (1976) (amended 1998). For further explanation of why the copyright on the hypothetical 1922 work ran through the end of 1997, see infra note 7 and infra text accompanying note 58. 3. See, e.g., Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 29-30 (2003) (noting that once a copyright expires and the work enters the public domain, any party may make unrestricted use of the work). 4. Under the fair use doctrine, use of a copyrighted work for such purposes as criticism, commentary, news reporting, teaching, scholarship, or research may not amount to copyright infringement, even though the user did not obtain permission from the copyright owner. See 17 U.S.C. § 107 (2000). 5. The explanation of why the copyright on the 1923 work continues to exist begins with the statutes cited supra note 2. Unlike the 1922 work, the 1923 work received the benefit of the 20-year duration extension provided by the Copyright Term Extension Act. Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, § 102, 112 Stat. 2827, 2827-28 (codified as amended at 17 U.S.C. §§ 302, 304 (2000) (amending 17 U.S.C. §§ 302, 304 (1976)) [hereinafter CTEA]. For further explanation of why the copyright on the hypothetical 1923 work has not expired, see infra note 9 and infra text accompanying notes 8-9, 59. 6. The 1909 Act established a basic copyright duration of 28 years from publication of the work, and allowed the option of a 28-year renewal term. Copyright Act of 1909, supra note 1, § 24. LANGVARDT 05/12/2004 12:52 PM 2004] UNWISE OR UNCONSTITUTIONAL? 195 enactment that extended the maximum copyright duration for pre-1978 works to 75 years.7 Twice blessed, the 1923 work qualified not only for the 1976 statute’s 19-year term extension but also for the 20-year bonus tacked on by the Copyright Term Extension Act of 1998 (CTEA).8 The 1923 work came within the CTEA’s coverage by still being under copyright when the CTEA took effect in 1998. The 1997 expiration of the copyright on the 1922 work caused that work to miss qualifying for the CTEA jackpot by one year.9 Thanks to the CTEA, the 1923 work carries a 95-year copyright duration. This is 39 years more than the term contemplated by the law in effect at the time copyright protection on the work was secured. A blunt two-part answer may be offered in response to the “What accounts for the drastically different durations?” question posed earlier. First, an accommodating Congress was too inclined to please institutional copyright owners and their lobbyists, so it granted a huge extension in copyright duration in 1998 without paying adequate attention to the public policy and constitutional implications of doing so.10 Second, the Supreme Court was overly concerned about the practical effects of holding the CTEA unconstitutional, so it opted in its Eldred v. Ashcroft11 decision for an exceedingly deferential posture toward Congress’ enactments pursuant to the Copyright Clause.12 In case the reader has not already guessed, the 7. See supra note 2. As of January 1, 1978, the 1922 work was still under copyright, in what would have been the last year of its renewal term. By still being “alive,” in a copyright law sense, as of January 1, 1978, the 1922 work obtained the benefit of the 1976 Act’s 19-year duration extension. Copyright Act of 1976, supra note 2. The renewal term that would have been 28 years therefore became a 47-year renewal term. As a result, the copyright on the 1922 work ran through the end of 1997. See id. § 305 (copyrights run through end of calendar year in which they otherwise would expire). 8. CTEA, supra note 5, §§ 102, 112 (codified as 17 U.S.C. §§ 302, 304). 9. CTEA, supra note 5, § 102(d). By still being under copyright as of January 1, 1978, the 1923 work qualified for the 1976 Act’s 19-year duration extension. See supra note 7. What would have been a renewal term of 28 years from 1951 thus became a renewal term of 47 years from 1951. Copyright Act of 1976, supra note 2, § 302. The 47-year renewal term meant that the 1923 work was under copyright as of October 1998. The CTEA took effect in October 1998, granting a 20-year duration extension to all existing copyrights that remained valid as of the statute’s effective date. CTEA, supra note 5, § 102(d), at 112 Stat. 2827-28. The 1923 work therefore met the necessary condition for obtaining the CTEA bonus. 10. See infra text accompanying notes 47-53, 60-62, 277-295. 11. 537 U.S. 186 (2003). 12. See infra text accompanying notes 97-111, 131-135, 162-163, 340-411. LANGVARDT 05/12/2004 12:52 PM 196 MINNESOTA INTEL. PROPERTY REVIEW [Vol. 5:2 authors sympathize with the blunt objections raised in this paragraph.