OCTOBER TERM, 2002
Syllabus
ELDRED ET AL.
v. ASHCROFT, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 01-618. Argued October 9, 2002-Decided January 15,2003
The Copyright and Patent Clause, U. S. Const., Art. I, § 8, cl.
8, provides as to copyrights: "Congress shall have Power ... [t]o
promote the Progress of Science ... by securing [to Authors] for
limited Times ... the exclusive Right to their ... Writings." In
the 1998 Copyright Term Extension Act (CTEA), Congress enlarged the
duration of copyrights by 20 years: Under the 1976 Copyright Act
(1976 Act), copyright protection generally lasted from a work's
creation until 50 years after the author's death; under the CTEA,
most copyrights now run from creation until 70 years after the
author's death, 17 U. S. C. § 302(a). As in the case of prior
copyright extensions, principally in 1831, 1909, and 1976, Congress
provided for application of the enlarged terms to existing and
future copyrights alike.
Petitioners, whose products or services build on copyrighted
works that have gone into the public domain, brought this suit
seeking a determination that the CTEA fails constitutional review
under both the Copyright Clause's "limited Times" prescription and
the First Amendment's free speech guarantee. Petitioners do not
challenge the CTEA's "life-plus-70-years" timespan itself. They
maintain that Congress went awry not with respect to newly created
works, but in enlarging the term for published works with existing
copyrights. The "limited Tim[e]" in effect when a copyright is
secured, petitioners urge, becomes the constitutional boundary, a
clear line beyond the power of Congress to extend. As to the First
Amendment, petitioners contend that the CTEA is a content-neutral
regulation of speech that fails inspection under the heightened
judicial scrutiny appropriate for such regulations. The District
Court entered judgment on the pleadings for the Attorney General
(respondent here), holding that the CTEA does not violate the
Copyright Clause's "limited Times" restriction because the CTEA's
terms, though longer than the 1976 Act's terms, are still limited,
not perpetual, and therefore fit within Congress' discretion. The
court also held that there are no First Amendment rights to use the
copyrighted works of others. The District of Columbia Circuit
affirmed. In that court's unanimous view,
Harper &
Row, Publishers, Inc. v.
Nation Enterprises, 471 U. S. 539, foreclosed
petitioners' First Amendment challenge to the CTEA. The appeals
court reasoned that copyright does not impermis-
187
sibly restrict free speech, for it grants the author an
exclusive right only to the specific form of expression; it does
not shield any idea or fact contained in the copyrighted work, and
it allows for "fair use" even of the expression itself. A majority
of the court also rejected petitioners' Copyright Clause claim. The
court ruled that Circuit precedent precluded petitioners' plea for
interpretation of the "limited Times" prescription with a view to
the Clause's preambular statement of purpose:
"To promote the Progress of Science." The court found nothing in
the constitutional text or history to suggest that a term of years
for a copyright is not a "limited Tim[e]" if it may later be
extended for another "limited Tim[e]." Recounting that the First
Congress made the 1790 Copyright Act applicable to existing
copyrights arising under state copyright laws, the court held that
that construction by contemporaries of the Constitution's formation
merited almost conclusive weight under
Burrow-Giles Lithographic
Co. v.
Sarony, 111 U. S. 53, 57. As early
as
McClurg v.
Kingsland, 1 How. 202, the Court of
Appeals recognized, this Court made it plain that the Copyright
Clause permits Congress to amplify an existing patent's terms. The
court added that this Court has been similarly deferential to
Congress' judgment regarding copyright.
E. g., Sony Corp. of
America v.
Universal City Studios, Inc., 464 U. S. 417. Concerning
petitioners' assertion that Congress could evade the limitation on
its authority by stringing together an unlimited number of "limited
Times," the court stated that such legislative misbehavior clearly
was not before it. Rather, the court emphasized, the CTEA matched
the baseline term for United States copyrights with the European
Union term in order to meet contemporary circumstances.
Held: In placing existing and future copyrights in parity
in the CTEA, Congress acted within its authority and did not
transgress constitutionallimitations. Pp. 199-222.
1. The CTEA's extension of existing copyrights does not exceed
Congress' power under the Copyright Clause. Pp. 199-218.
(a) Guided by text, history, and precedent, this Court cannot
agree with petitioners that extending the duration of existing
copyrights is categorically beyond Congress' Copyright Clause
authority. Although conceding that the CTEA's baseline term of life
plus 70 years qualifies as a "limited Tim[e]" as applied to future
copyrights, petitioners contend that existing copyrights extended
to endure for that same term are not "limited." In petitioners'
view, a time prescription, once set, becomes forever "fixed" or
"inalterable." The word "limited," however, does not convey a
meaning so constricted. At the time of the Framing, "limited" meant
what it means today: confined within certain bounds, restrained, or
circumscribed. Thus understood, a timespan appropriately
"limited"
188
Syllabus
as applied to future copyrights does not automatically cease to
be "limited" when applied to existing copyrights. To comprehend the
scope of Congress' Copyright Clause power, "a page of history is
worth a volume of logic."
New York Trust Co. v.
Eisner, 256 U.
S. 345, 349. History reveals an unbroken congressional practice
of granting to authors of works with existing copyrights the
benefit of term extensions so that all under copyright protection
will be governed evenhandedly under the same regime. Moreover,
because the Clause empowering Congress to confer copyrights also
authorizes patents, the Court's inquiry is significantly informed
by the fact that early Congresses extended the duration of numerous
individual patents as well as copyrights. Lower courts saw no
"limited Times" impediment to such extensions. Further, although
this Court never before has had occasion to decide whether
extending existing copyrights complies with the "limited Times"
prescription, the Court has found no constitutional barrier to the
legislative expansion of existing patents. See,
e. g.,
McClurg, 1 How., at 206. Congress' consistent historical
practice reflects a judgment that an author who sold his work a
week before should not be placed in a worse situation than the
author who sold his work the day after enactment of a copyright
extension. The CTEA follows this historical practice by keeping the
1976 Act's duration provisions largely in place and simply adding
20 years to each of them.
The CTEA is a rational exercise of the legislative authority
conferred by the Copyright Clause. On this point, the Court defers
substantially to Congress.
Sony, 464 U. S., at 429. The CTEA
reflects judgments of a kind Congress typically makes, judgments
the Court cannot dismiss as outside the Legislature's domain. A key
factor in the CTEA's passage was a 1993 European Union (EU)
directive instructing EU members to establish a baseline copyright
term of life plus 70 years and to deny this longer term to the
works of any non-EU country whose laws did not secure the same
extended term. By extending the baseline United States copyright
term, Congress sought to ensure that American authors would receive
the same copyright protection in Europe as their European
counterparts. The CTEA may also provide greater incentive for
American and other authors to create and disseminate their work in
the United States. Additionally, Congress passed the CTEA in light
of demographic, economic, and technological changes, and rationally
credited projections that longer terms would encourage copyright
holders to invest in the restoration and public distribution of
their works. Pp. 199-208.
(b) Petitioners' Copyright Clause arguments, which rely on
several novel readings of the Clause, are unpersuasive. Pp.
208-218.
189
(1) Nothing before this Court warrants construction of the
CTEA's 20-year term extension as a congressional attempt to evade
or override the "limited Times" constraint. Critically, petitioners
fail to show how the CTEA crosses a constitutionally significant
threshold with respect to "limited Times" that the 1831, 1909, and
1976 Acts did not. Those earlier Acts did not create perpetual
copyrights, and neither does the CTEA. Pp. 208-210.
(2) Petitioners' dominant series of arguments, premised on the
proposition that Congress may not extend an existing copyright
absent new consideration from the author, are unavailing. The first
such contention, that the CTEA's extension of existing copyrights
overlooks the requirement of "originality," incorrectly relies on
Feist Publications, Inc. v.
Rural Telephone Service
Co., 499 U. S.
340, 345, 359. That case did not touch on the duration of
copyright protection. Rather, it addressed only the core question
of copyright ability. Explaining the originality requirement,
Feist trained on the Copyright Clause words "Authors" and
"Writings," id., at 346-347, and did not construe the "limited
Times" prescription, as to which the originality requirement has no
bearing. Also unavailing is petitioners' second argument, that the
CTEA's extension of existing copyrights fails to "promote the
Progress of Science" because it does not stimulate the creation of
new works, but merely adds value to works already created. The
justifications that motivated Congress to enact the CTEA, set forth
supra, provide a rational basis for concluding that the CTEA
"promote[s] the Progress of Science." Moreover, Congress' unbroken
practice since the founding generation of applying new definitions
or adjustments of the copyright term to both future works and
existing works overwhelms petitioners' argument. Also rejected is
petitioners' third contention, that the CTEA's extension of
existing copyrights without demanding additional consideration
ignores copyright's
quid pro quo, whereby Congress grants
the author of an original work an "exclusive Right" for a "limited
Tim[e]" in exchange for a dedication to the public thereafter.
Given Congress' consistent placement of existing copyright holders
in parity with future holders, the author of a work created in the
last 170 years would reasonably comprehend, as the protection
offered her, a copyright not only for the time in place when
protection is gained, but also for any renewal or extension
legislated during that time.
Sears, Roebuck &
Co.
v.
Stiffel Co., 376 U. S. 225, 229, and
Bonito Boats, Inc. v.
Thunder Craft Boats, Inc.,
489 U. S. 141,
146, both of which involved the federal patent regime, are not to
the contrary, since neither concerned the extension of a patent's
duration nor suggested that such an extension
190
Syllabus
might be constitutionally infirm. Furthermore, given crucial
distinctions between patents and copyrights, one cannot extract
from language in the Court's patent decisions-language not trained
on a grant's duration-genuine support for petitioners'
quid pro
quo argument. Patents and copyrights do not entail the same
exchange, since immediate disclosure is not the objective of, but
is
exacted from, the patentee, whereas disclosure is the
desired objective of the author seeking copyright protection.
Moreover, while copyright gives the holder no monopoly on any
knowledge, fact, or idea, the grant of a patent prevents full use
by others of the inventor's knowledge. Pp.210-217.
(3) The "congruence and proportionality" standard of review
described in cases evaluating exercises of Congress' power under §
5 of the Fourteenth Amendment has never been applied outside the §
5 context. It does not hold sway for judicial review of legislation
enacted, as copyright laws are, pursuant to Article I
authorization. Section 5 authorizes Congress to "enforce" commands
contained in and incorporated into the Fourteenth Amendment. The
Copyright Clause, in contrast, empowers Congress to
define
the scope of the substantive right. See
Sony, 464 U. S., at
429. Judicial deference to such congressional definition is "but a
corollary to the grant to Congress of any Article I power."
Graham v.
John Deere Co. of Kansas City, 383 U. S. 1, 6. It would be
no more appropriate for this Court to subject the CTEA to
"congruence and proportionality" review than it would be to hold
the Act unconstitutional
per se. Pp.217-218.
2. The CTEA's extension of existing and future copyrights does
not violate the First Amendment. That Amendment and the Copyright
Clause were adopted close in time. This proximity indicates the
Framers' view that copyright's limited monopolies are compatible
with free speech principles. In addition, copyright law contains
built-in First Amendment accommodations. See
Harper &
Row, 471 U. S., at 560. First, 17 U. S. C. § 102(b), which
makes only expression, not ideas, eligible for copyright
protection, strikes a definitional balance between the First
Amendment and copyright law by permitting free communication of
facts while still protecting an author's expression.
Harper
&
Row, 471 U. S., at 556. Second, the "fair use" defense
codified at § 107 allows the public to use not only facts and ideas
contained in a copyrighted work, but also expression itself for
limited purposes. "Fair use" thereby affords considerable latitude
for scholarship and comment, id., at 560, and even for parody, see
Campbell v.
Acuff-Rose Music, Inc., 510 U. S. 569.
The CTEA itself supplements these traditional First Amendment
safeguards in two prescriptions: The first allows libraries and
similar institutions to reproduce and distribute copies of certain
published works for scholarly purposes during the last 20 years of
any copyright
191
term, if the work is not already being exploited commercially
and further copies are unavailable at a reasonable price, § 108(h);
the second exempts small businesses from having to pay performance
royalties on music played from licensed radio, television, and
similar facilities, § 1l0(5)(B). Finally, petitioners' reliance on
Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 641, is
misplaced.
Turner Broadcasting involved a statute requiring
cable television operators to carry and transmit broadcast stations
through their proprietary cable systems. The CTEA, in contrast,
does not oblige anyone to reproduce another's speech against the
carrier's will. Instead, it protects authors' original expression
from unrestricted exploitation. The First Amendment securely
protects the freedom to make--or decline to make--one's own speech;
it bears less heavily when speakers assert the right to make other
people's speeches. When, as in this case, Congress has not altered
the traditional contours of copyright protection, further First
Amendment scrutiny is unnecessary. See,
e. g., Harper &
Row, 471 U. S., at 560. Pp. 218-222.
239 F.3d
372, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, and
THOMAS, JJ., joined. STEVENS, J.,
post, p. 222, and BREYER,
J.,
post, p. 242, filed dissenting opinions.
Lawrence Lessig argued the cause for petitioners. With him on
the briefs were Kathleen M. Sullivan, Alan B. Morrison, Edward Lee,
Charles Fried, Geoffrey S. Stewart, Donald B. Ayer, Robert P.
Ducatman, Daniel H. Bromberg, Charles R. Nesson, and Jonathan L.
Zittrain.
Solicitor General Olson argued the cause for
respondent.
With him on the brief were Assistant Attorney General McCallum,
Deputy Solicitor General Wallace, Jeffrey A. Lamken, William
Kanter, and John S. Koppel.*
*Briefs of
amici curiae urging reversal were filed for
the American Association of Law Libraries et al. by
Arnold P.
Lutzker and
Carl H. Settlemyer III; for the College Art
Association et al. by
Jeffrey P. Cunard and
Bruce P.
Keller; for the Eagle Forum Education & Legal Defense Fund
et al. by
Karen Tripp and
Phyllis Schlafiy; for the
Free Software Foundation by
Eben M oglen; for Intellectual
Property Law Professors by
Jonathan Weinberg; for the
Internet Archive et al. by
Deirdre K. Mulli-
192
JUSTICE GINSBURG delivered the opinion of the Court. This case
concerns the authority the Constitution assigns to Congress to
prescribe the duration of copyrights. The Copyright and Patent
Clause of the Constitution, Art. I, § 8, cl. 8, provides as to
copyrights: "Congress shall have
gan, Mark A. Lemley, and Steven M. Harris; and for Jack M.
Balkin et al. by Burt Neuborne.
Briefs of amici curiae urging affirmance were filed for the
American Intellectual Property Law Association by Baila H.
Celedonia, Mark E. Haddad, and Roger W Parkhurst; for the American
Society of Composers, Authors and Publishers et al. by Carey R.
Ramos, Peter L. Felcher, Drew S. Days III, Beth S. Brinkmann, and
Paul Goldstein; for Amsong, Inc., by Dorothy M. Weber; for AOL Time
Warner, Inc., by Kenneth W Starr, Richard A. Cordray, Daryl
Joseffer, Paul T. Cappuccio, Edward J. Weiss, and Shira Perlmutter;
for the Association of American Publishers et al. by Charles S.
Sims and Jon A. Baumgarten; for the Bureau of National Mfairs,
Inc., et al. by Paul Bender and Michael R. Klipper; for the
Directors Guild of America et al. by George H. Cohen, Leon Dayan,
and Laurence Gold; for Dr. Seuss Enterprises, L. P., et al. by Karl
ZoBell, Nancy O. Dix, Cathy Ann Bencivengo, Randall E. Kay, and
Herbert B. Cheyette; for the Intellectual Property Owners
Association by Charles D. Ossola and Ronald E. Myrick; for the
International Coalition for Copyright Protection by Eric Lieberman;
for the Motion Picture Association of America, Inc., by Seth P.
Waxman, Randolph D. Moss, Edward C. DuMont, Neil M. Richards, and
Simon Barsky; for the Recording Artists Coalition by Thomas G.
Corcoran, Jr.; for the Recording Industry Association of America by
Donald B. Verrilli, Jr., Thomas J. Perrelli, William M.
Hohengarten, Matthew J. Oppenheim, and Stanley Pierre-Louis; for
the Songwriters Guild of America by Floyd Abrams and Joel
Kurtzberg; for Jack Beeson et al. by I. Fred Koenigsberg and Gaela
K. Gehring Flores; for Senator Orrin G. Hatch by Thomas R. Lee; for
Edward Samuels, pro se; and for Representative F. James
Sensenbrenner, Jr., et al. by Arthur B. Culvahouse, Jr., and Robert
M. Schwartz.
Briefs of
amici curiae were filed for Hal Roach Studios
et al. by
H.
Jefferson Powell and
David Lange; for Intel Corp.
by
James M. Burger; for the Nashville Songwriters
Association International by
Stephen K. Rush; for the New
York Intellectual Property Law Association by
Bruce M.
Wexler and
Peter Saxon; for the National Writers Union
et al. by
Peter Jaszi; for the Progressive Intellectual
Property Law Association et al. by
Michael H. Davis; for
George A. Akerlof et al. by
Roy T. Englert, Jr.; for Tyler
T. Ochoa et al. by
Mr. Ochoa; and for
Malla Pollack, pro
se.
193
Power ... [t]o promote the Progress of Science ... by securing
[to Authors] for limited Times ... the exclusive Right to their ...
Writings." In 1998, in the measure here under inspection, Congress
enlarged the duration of copyrights by 20 years. Copyright Term
Extension Act (CTEA), Pub. L. 105-298, §§ 102(b) and (d), 112 Stat.
2827-2828 (amending 17 U. S. C. §§ 302, 304). As in the case of
prior extensions, principally in 1831, 1909, and 1976, Congress
provided for application of the enlarged terms to existing and
future copyrights alike.
Petitioners are individuals and businesses whose products or
services build on copyrighted works that have gone into the public
domain. They seek a determination that the CTEA fails
constitutional review under both the Copyright Clause's "limited
Times" prescription and the First Amendment's free speech
guarantee. Under the 1976 Copyright Act, copyright protection
generally lasted from the work's creation until 50 years after the
author's death. Pub. L. 94553, § 302(a), 90 Stat. 2572 (1976 Act).
Under the CTEA, most copyrights now run from creation until 70
years after the author's death. 17 U. S. C. § 302(a). Petitioners
do not challenge the "life-plus-70-years" timespan itself. "Whether
50 years is enough, or 70 years too much," they acknowledge, "is
not a judgment meet for this Court." Brief for Petitioners 14.1
Congress went awry, petitioners maintain, not with respect to newly
created works, but in enlarging the term for published works with
existing copyrights. The "limited Tim[e]" in effect when a
copyright is secured, petitioners urge, becomes the constitutional
boundary, a clear line beyond the power of Congress to extend. See
ibid. As to the First Amendment, petitioners contend that the CTEA
is a content-neutral regulation of speech that fails inspection
IJU8TICE BREYER'S dissent is not similarly restrained. He makes
no effort meaningfully to distinguish existing copyrights from
future grants. See,
e. g.,
post, at 242-243, 254-260,
264-266. Under his reasoning, the CTEA's 20-year extension is
globally unconstitutional.
194
under the heightened judicial scrutiny appropriate for such
regulations.
In accord with the District Court and the Court of Appeals, we
reject petitioners' challenges to the CTEA. In that 1998
legislation, as in all previous copyright term extensions, Congress
placed existing and future copyrights in parity. In prescribing
that alignment, we hold, Congress acted within its authority and
did not transgress constitutional limitations.
I A
We evaluate petitioners' challenge to the constitutionality of
the CTEA against the backdrop of Congress' previous exercises of
its authority under the Copyright Clause. The Nation's first
copyright statute, enacted in 1790, provided a federal copyright
term of 14 years from the date of publication, renewable for an
additional 14 years if the author survived the first term. Act of
May 31, 1790, ch. 15, § 1, 1 Stat. 124 (1790 Act). The 1790 Act's
renewable 14-year term applied to existing works (i.
e.,
works already published and works created but not yet published)
and future works alike.
Ibid. Congress expanded the federal
copyright term to 42 years in 1831 (28 years from publication,
renewable for an additional 14 years), and to 56 years in 1909 (28
years from publication, renewable for an additional 28 years). Act
of Feb. 3, 1831, ch. 16, §§ 1, 16, 4 Stat. 436, 439 (1831 Act); Act
of Mar. 4, 1909, ch. 320, §§23-24, 35 Stat. 1080-1081 (1909 Act).
Both times, Congress applied the new copyright term to existing and
future works, 1831 Act §§ 1, 16; 1909 Act §§ 23-24; to qualify for
the 1831 extension, an existing work had to be in its initial
copyright term at the time the Act became effective, 1831 Act §§ 1,
16.
In 1976, Congress altered the method for computing federal
copyright terms. 1976 Act §§ 302-304. For works cre-
195
ated by identified natural persons, the 1976 Act provided that
federal copyright protection would run from the work's creation,
not-as in the 1790, 1831, and 1909 Acts-its publication; protection
would last until 50 years after the author's death. § 302(a). In
these respects, the 1976 Act aligned United States copyright terms
with the then-dominant international standard adopted under the
Berne Convention for the Protection of Literary and Artistic Works.
See H. R. Rep. No. 94-1476, p. 135 (1976). For anonymous works,
pseudonymous works, and works made for hire, the 1976 Act provided
a term of 75 years from publication or 100 years from creation,
whichever expired first. § 302(c).
These new copyright terms, the 1976 Act instructed, governed all
works not published by its effective date of January 1, 1978,
regardless of when the works were created. §§ 302303. For published
works with existing copyrights as of that date, the 1976 Act
granted a copyright term of 75 years from the date of publication,
§§ 304(a) and (b), a 19-year increase over the 56-year term
applicable under the 1909 Act.
The measure at issue here, the CTEA, installed the fourth major
duration extension of federal copyrights.2 Retaining the general
structure of the 1976 Act, the CTEA enlarges the terms of all
existing and future copyrights by 20 years. For works created by
identified natural persons, the term now lasts from creation until
70 years after the author's
2 Asserting that the last several decades have seen a
proliferation of copyright legislation in departure from Congress'
traditional pace of legislative amendment in this area, petitioners
cite nine statutes passed between 1962 and 1974, each of which
incrementally extended existing copyrights for brief periods. See
Pub. L. 87-668, 76 Stat. 555; Pub. L. 89-142, 79 Stat. 581; Pub. L.
90-141, 81 Stat. 464; Pub. L. 90-416, 82 Stat. 397; Pub. L.
91-147,83 Stat. 360; Pub. L. 91-555,84 Stat. 1441; Pub. L. 92-170,
85 Stat. 490; Pub. L. 92-566, 86 Stat. 1181; Pub. L. 93-573, Title
I, 88 Stat. 1873. As respondent (Attorney General Ashcroft) points
out, however, these statutes were all temporary placeholders
subsumed into the systemic changes effected by the 1976 Act. Brief
for Respondent 9.
196
death. 17 U. S. C. § 302(a). This standard harmonizes the
baseline United States copyright term with the term adopted by the
European Union in 1993. See Council Directive 93/98/EEC of 29
October 1993 Harmonizing the Term of Protection of Copyright and
Certain Related Rights, 1993 Official J. Eur. Corns. (L 290), p. 9
(EU Council Directive 93/ 98). For anonymous works, pseudonymous
works, and works made for hire, the term is 95 years from
publication or 120 years from creation, whichever expires first. 17
U. S. C. § 302(c).
Paralleling the 1976 Act, the CTEA applies these new terms to
all works not published by January 1, 1978. §§ 302(a), 303(a). For
works published before 1978 with existing copyrights as of the
CTEA's effective date, the CTEA extends the term to 95 years from
publication. §§ 304(a) and (b). Thus, in common with the 1831,
1909, and 1976 Acts, the CTEA's new terms apply to both future and
existing copyrights.3
B
Petitioners' suit challenges the CTEA's constitutionality under
both the Copyright Clause and the First Amendment. On cross-motions
for judgment on the pleadings, the District Court entered judgment
for the Attorney General (respondent here). 74 F. Supp. 2d 1 (DC
1999). The court held that the CTEA does not violate the "limited
Times" restriction of the Copyright Clause because the CTEA's
terms, though
3 Petitioners argue that the 1790 Act must be distinguished from
the later Acts on the ground that it covered existing
works
but did not extend existing
copyrights. Reply Brief 3-7. The
parties disagree on the question whether the 1790 Act's copyright
term should be regarded in part as compensation for the loss of any
then existing state- or common-law copyright protections. See Brief
for Petitioners 28-30; Brief for Respondent 17, n. 9; Reply Brief
3-7. Without resolving that dispute, we underscore that the First
Congress clearly did confer copyright protection on works that had
already been created.
197
longer than the 1976 Act's terms, are still limited, not
perpetual, and therefore fit within Congress' discretion.
Id., at 3. The court also held that "there are no First
Amendment rights to use the copyrighted works of others."
Ibid.
The Court of Appeals for the District of Columbia Circuit
affirmed.
239 F.3d
372 (2001). In that court's unanimous view,
Harper &
Row, Publishers, Inc. v.
Nation Enterprises, 471 U. S. 539 (1985),
foreclosed petitioners' First Amendment challenge to the CTEA. 239
F. 3d, at 375. Copyright, the court reasoned, does not
impermissibly restrict free speech, for it grants the author an
exclusive right only to the specific form of expression; it does
not shield any idea or fact contained in the copyrighted work, and
it allows for "fair use" even of the expression itself.
Id.,
at 375-376.
A majority of the Court of Appeals also upheld the CTEA against
petitioners' contention that the measure exceeds Congress' power
under the Copyright Clause. Specifically, the court rejected
petitioners' plea for interpretation of the "limited Times"
prescription not discretely but with a view to the "preambular
statement of purpose" contained in the Copyright Clause: "To
promote the Progress of Science."
Id., at 377-378. Circuit
precedent,
Schnapper v.
Foley, 667 F. 2d 102 (CADC
1981), the court determined, precluded that plea. In this regard,
the court took into account petitioners' acknowledgment that the
preamble itself places no substantive limit on Congress'
legislative power. 239 F. 3d, at 378.
The appeals court found nothing in the constitutional text or
its history to suggest that "a term of years for a copyright is not
a 'limited Time' if it may later be extended for another 'limited
Time.'"
Id., at 379. The court recounted that "the First
Congress made the Copyright Act of 1790 applicable to subsisting
copyrights arising under the copyright laws of the several states."
Ibid. That construction of Congress' authority under the
Copyright Clause "by [those] contemporary with [the Constitution's]
formation," the court said, mer-
198
ited "very great" and in this case "almost conclusive" weight.
Ibid. (quoting
Burrow-Giles Lithographic Co. v.
Sarony, 111 U.
S. 53, 57 (1884)). As early as
McClurg v.
Kingsland, 1 How. 202 (1843), the Court of Appeals added,
this Court had made it "plain" that the same Clause permits
Congress to "amplify the terms of an existing patent." 239 F. 3d,
at 380. The appeals court recognized that this Court has been
similarly deferential to the judgment of Congress in the realm of
copyright.
Ibid. (citing
Sony Corp. of America v.
Universal City Studios, Inc., 464 U. S. 417 (1984);
Stewart v.
Abend, 495 U. S. 207 (1990)).
Concerning petitioners' assertion that Congress might evade the
limitation on its authority by stringing together "an unlimited
number of 'limited Times,'" the Court of Appeals stated that such
legislative misbehavior "clearly is not the situation before us."
239 F. 3d, at 379. Rather, the court noted, the CTEA "matches" the
baseline term for "United States copyrights [with] the terms of
copyrights granted by the European Union."
Ibid. "[I]n an
era of multinational publishers and instantaneous electronic
transmission," the court said, "harmonization in this regard has
obvious practical benefits" and is "a 'necessary and proper'
measure to meet contemporary circumstances rather than a step on
the way to making copyrights perpetual."
Ibid.
Judge Sentelle dissented in part. He concluded that Congress
lacks power under the Copyright Clause to expand the copyright
terms of existing works.
Id., at 380-384. The Court of
Appeals subsequently denied rehearing and rehearing en banco
255 F.3d
849 (2001).
We granted certiorari to address two questions: whether the
CTEA's extension of existing copyrights exceeds Congress' power
under the Copyright Clause; and whether the CTEA's extension of
existing and future copyrights violates the First Amendment. 534 U.
S. 1126 and 1160 (2002). We now answer those two questions in the
negative and affirm.
199
II A
We address first the determination of the courts below that
Congress has authority under the Copyright Clause to extend the
terms of existing copyrights. Text, history, and precedent, we
conclude, confirm that the Copyright Clause empowers Congress to
prescribe "limited Times" for copyright protection and to secure
the same level and duration of protection for all copyright
holders, present and future.
The CTEA's baseline term of life plus 70 years, petitioners
concede, qualifies as a "limited Tim[e]" as applied to future
copyrights.4 Petitioners contend, however, that existing copyrights
extended to endure for that same term are not "limited."
Petitioners' argument essentially reads into the text of the
Copyright Clause the command that a time prescription, once set,
becomes forever "fixed" or "inalterable." The word "limited,"
however, does not convey a meaning so constricted. At the time of
the Framing, that word meant what it means today: "confine[d]
within certain bounds," "restrain[ed]," or "circumscribe[d]." S.
Johnson, A Dictionary of the English Language (7th ed. 1785); see
T. Sheridan, A Complete Dictionary of the English Language (6th ed.
1796) ("confine[d] within certain bounds"); Webster's Third New
International Dictionary 1312 (1976) ("confined within limits";
"restricted in extent, number, or duration"). Thus understood, a
timespan appropriately "limited" as applied to future copyrights
does not automatically cease to be "limited" when applied to
existing copyrights. And as we observe,
infra, at 209-210,
there is no cause to suspect that a
4 We note again that JUSTICE BREYER makes no such concession.
See
supra, at 193, n. 1. He does not train his fire, as
petitioners do, on Congress' choice to place existing and future
copyrights in parity. Moving beyond the bounds of the parties'
presentations, and with abundant policy arguments but precious
little support from precedent, he would condemn Congress' entire
product as irrational.
200
purpose to evade the "limited Times" prescription prompted
Congress to adopt the CTEA.
To comprehend the scope of Congress' power under the Copyright
Clause, "a page of history is worth a volume of logic."
New York
Trust Co. v.
Eisner, 256 U. S. 345, 349 (1921)
(Holmes, J.). History reveals an unbroken congressional practice of
granting to authors of works with existing copyrights the benefit
of term extensions so that all under copyright protection will be
governed evenhandedly under the same regime. As earlier recounted,
see
supra, at 194, the First Congress accorded the
protections of the Nation's first federal copyright statute to
existing and future works alike. 1790 Act § 1.5 Since then,
Congress has regularly applied
5 This approach comported with English practice at the time. The
Statute of Anne, 1710,8 Ann. c. 19, provided copyright protection
to books not yet composed or published, books already composed but
not yet published, and books already composed and published. See
ibid. ("[T]he author of any book or books already composed, and not
printed and published, or that shall hereafter be composed, and his
assignee or assigns, shall have the sole liberty of printing and
reprinting such book and books for the term of fourteen years, to
commence from the day of the first publishing the same, and no
longer."); ibid. ("[T]he author of any book or books already
printed ... or the bookseller or booksellers, printer or printers,
or other person or persons, who hath or have purchased or acquired
the copy or copies of any book or books, in order to print or
reprint the same, shall have the sole right and liberty of printing
such book and books for the term of one and twenty years, to
commence from the said tenth day of April, and no longer.").
JUSTICE STEVENS stresses the rejection of a proposed amendment
to the Statute of Anne that would have extended the term of
existing copyrights, and reports that opponents of the extension
feared it would perpetuate the monopoly position enjoyed by English
booksellers.
Post, at 232233, and n. 9. But the English
Parliament confronted a situation that never existed in the United
States. Through the late 17th century, a government-sanctioned
printing monopoly was held by the Stationers' Company, "the ancient
London guild of printers and booksellers." M. Rose, Authors and
Owners: The Invention of Copyright 4 (1993); see L. Patterson,
Copyright in Historical Perspective ch. 3 (1968). Although
201
duration extensions to both existing and future copyrights. 1831
Act §§ 1, 16; 1909 Act §§ 23-24; 1976 Act §§ 302-303; 17 U. S. C. §
§ 302-304.6
Because the Clause empowering Congress to confer copyrights also
authorizes patents, congressional practice with respect to patents
informs our inquiry. We count it significant that early Congresses
extended the duration of numerous individual patents as well as
copyrights. See,
e. g., Act of Jan. 7, 1808, ch. 6, 6 Stat.
70 (patent); Act of Mar. 3, 1809, ch. 35, 6 Stat. 80 (patent); Act
of Feb. 7, 1815, ch. 36, 6 Stat. 147 (patent); Act of May 24, 1828,
ch. 145, 6 Stat. 389 (copyright); Act of Feb. 11, 1830, ch. 13, 6
Stat. 403 (copyright);
that legal monopoly ended in 1695, concerns about monopolistic
practices remained, and the 18th-century English Parliament was
resistant to any enhancement of booksellers' and publishers'
entrenched position. See Rose,
supra, at 52-56. In this
country, in contrast, competition among publishers, printers, and
booksellers was "intens[e]" at the time of the founding, and "there
was not even a rough analog to the Stationers' Company on the
horizon." Nachbar, Constructing Copyright's Mythology, 6 Green Bag
2d 37, 45 (2002). The Framers guarded against the future
accumulation of monopoly power in booksellers and publishers by
authorizing Congress to vest copyrights only in "Authors." JUSTICE
STEVENS does not even attempt to explain how Parliament's response
to England's experience with a publishing monopoly may be construed
to impose a constitutional limitation on Congress' power to extend
copyrights granted to "Authors."
6 Moreover, the precise duration of a federal copyright has
never been fixed at the time of the initial grant. The 1790 Act
provided a federal copyright term of 14 years from the work's
publication, renewable for an additional 14 years
if the
author survived and applied for an additional term. § 1. Congress
retained that approach in subsequent statutes. See
Stewart
v.
Abend, 495
U. S. 207,217 (1990) ("Since the earliest copyright statute in
this country, the copyright term of ownership has been split
between an original term and a renewal term."). Similarly, under
the method for measuring copyright terms established by the 1976
Act and retained by the CTEA, the baseline copyright term is
measured in part by the life of the author, rendering its duration
indeterminate at the time of the grant. See 1976 Act § 302(a); 17
U. S. C. § 302(a).
202
see generally Ochoa, Patent and Copyright Term Extension and the
Constitution: A Historical Perspective, 49 J. Copyright Soc. 19
(2001). The courts saw no "limited Times" impediment to such
extensions; renewed or extended terms were upheld in the early
days, for example, by Chief Justice Marshall and Justice Story
sitting as circuit justices. See
Evans v.
Jordan, 8
F. Cas. 872, 874 (No. 4,564)
(CC Va. 1813) (Marshall, J.)
("Th[e] construction of the constitution which admits the renewal
of a patent, is not controverted. A renewed patent ... confers the
same rights, with an original."), aff'd, 9 Cranch 199 (1815);
Blanchard v.
Sprague, 3 F. Cas. 648,650 (No. 1,518)
(CC Mass. 1839) (Story, J.) ("I never have entertained any doubt of
the constitutional authority of congress" to enact a 14-year patent
extension that "operates retrospectively"); see also
Evans
v.
Robinson, 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813)
(Congresses "have the exclusive right ... to limit the times for
which a patent right shall be granted, and are not restrained from
renewing a patent or prolonging" it.).7
Further, although prior to the instant case this Court did not
have occasion to decide whether extending the duration of existing
copyrights complies with the "limited Times" prescription, the
Court has found no constitutional barrier to the legislative
expansion of existing patents.8
McClurg v.
7 JUSTICE STEVENS would sweep away these decisions, asserting
that
Graham v.
John Deere Co. of Kansas City,
383 U. S. 1 (1966),
"flatly contradicts" them.
Post, at 237. Nothing but wishful
thinking underpins that assertion. The controversy in
Graham
involved no patent extension.
Graham addressed an
invention's very eligibility for patent protection, and spent no
words on Congress' power to enlarge a patent's duration.
8 JUSTICE STEVENS recites words from
Sears, Roebuck &
Co. v.
Stiffel Co.,
376 U. S. 225 (1964),
supporting the uncontroversial proposition that a State may not
"extend the life of a patent beyond its expiration date," id., at
231, then boldly asserts that for the same reasons Congress may not
do so either. See
post, at 222, 226. But
Sears placed
no reins on Congress' authority to extend a patent's life. The full
sentence in
Sears, from which JUSTICE STEVENS extracts
words, reads: "Obviously a State could not,
203
Kingsland, 1 How. 202 (1843), is the pathsetting
precedent. The patentee in that case was unprotected under the law
in force when the patent issued because he had allowed his employer
briefly to practice the invention before he obtained the patent.
Only upon enactment, two years later, of an exemption for such
allowances did the patent become valid, retroactive to the time it
issued.
McClurg upheld retroactive application of the new
law. The Court explained that the legal regime governing a
particular patent "depend[s] on the law as it stood at the
emanation of the patent, together with such changes as have been
since made; for though they may be retrospective in their
operation, that is not a sound objection to their validity."
Id., at 206.9 Neither is it a sound
consistently with the Supremacy Clause of the Constitution,
extend the life of a patent beyond its expiration date or give a
patent on an article which lacked the level of invention required
for federal patents." 376 U. S., at 231. The point insistently made
in
Sears is no more and no less than this:
States may
not enact measures inconsistent with the federal patent laws.
Ibid. ("[A] State cannot encroach upon the federal patent
laws directly ... [and] cannot ... give protection of a kind that
clashes with the objectives of the federal patent laws."). A
decision thus rooted in the Supremacy Clause cannot be turned
around to shrink congressional choices.
Also unavailing is JUSTICE STEVENS' appeal to language found in
a private letter written by James Madison.
Post, at 230, n.
6; see also dissenting opinion of BREYER, J.,
post, at
246-247, 260, 261. Respondent points to a better "demonstrat[ion],"
post, at 226, n. 3 (STEVENS, J., dissenting), of Madison's
and other Framers' understanding of the scope of Congress' power to
extend patents: "[T]hen-President Thomas Jefferson-the first
administrator of the patent system, and perhaps the Founder with
the narrowest view of the copyright and patent powers-signed the
1808 and 1809 patent term extensions into law; ... James Madison,
who drafted the Constitution's 'limited Times' language, issued the
extended patents under those laws as Secretary of State; and ...
Madison as President signed another patent term extension in 1815."
Brief for Respondent 15.
9JUSTICE STEVENS reads
McClurg to convey that "Congress
cannot change the bargain between the public and the patentee in a
way that disadvantages the patentee."
Post, at 239. But
McClurg concerned no
204
objection to the validity of a copyright term extension, enacted
pursuant to the same constitutional grant of authority, that the
enlarged term covers existing copyrights.
Congress' consistent historical practice of applying newly
enacted copyright terms to future and existing copyrights reflects
a judgment stated concisely by Representative Huntington at the
time of the 1831 Act: "[J]ustice, policy, and equity alike
forb[id]" that an "author who had sold his [work] a week ago, be
placed in a worse situation than the author who should sell his
work the day after the passing of [the] act." 7 Congo Deb. 424
(1831); accord, Symposium, The Constitutionality of Copyright Term
Extension, 18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof.
Miller) ("[S]ince 1790, it has indeed been Congress's policy that
the author of yesterday's work should not get a lesser reward than
the author of tomorrow's work just because Congress passed a
statute lengthening the term today."). The CTEA follows this
historical practice by keeping the duration provisions of the 1976
Act largely in place and simply adding 20 years to each of them.
Guided by text, history, and precedent, we cannot agree with
petitioners' submission that extending the duration of existing
copyrights is categorically beyond Congress' authority under the
Copyright Clause.
Satisfied that the CTEA complies with the "limited Times"
prescription, we turn now to whether it is a rational exercise of
the legislative authority conferred by the Copyright Clause. On
that point, we defer substantially to Congress.
such change. To the contrary, as JUSTICE STEVENS acknowledges,
McClurg held that use of an invention by the patentee's
employer did not invalidate the inventor's 1834 patent, "even if it
might have had that effect prior to the amendment of the patent
statute in 1836."
Post, at 239. In other words,
McClurg evaluated the patentee's rights not simply in light
of the patent law in force at the time the patent issued, but also
in light of "such changes as ha[d] been since made." 1 How., at
206. It is thus inescapably plain that
McClurg upheld the
application of expanded patent protection to an existing
patent.
205
Sony, 464 U. S., at 429 ("[I]t is Congress that has been
assigned the task of defining the scope of the limited monopoly
that should be granted to authors ... in order to give the public
appropriate access to their work product.").lo
The CTEA reflects judgments of a kind Congress typically makes,
judgments we cannot dismiss as outside the Legislature's domain. As
respondent describes, see Brief for Respondent 37-38, a key factor
in the CTEA's passage was a 1993 European Union (EU) directive
instructing EU members to establish a copyright term of life plus
70 years. EU Council Directive 93/98, Art. 1(1), p. 11; see 144
Congo Rec. S12377-S12378 (daily ed. Oct. 12, 1998) (statement of
Sen. Hatch). Consistent with the Berne Convention, the EU directed
its members to deny this longer term to the works of any non-EU
country whose laws did not secure the same extended term. See Berne
Conv. Art. 7(8); P. Goldstein, International Copyright § 5.3, p.
239 (2001). By extending the baseline United States copyright term
to life plus 70 years, Congress sought to ensure that American
authors would re-
10 JUSTICE BREYER would adopt a heightened, three-part test for
the constitutionality of copyright enactments.
Post, at 245.
He would invalidate the CTEA as irrational in part because, in his
view, harmonizing the United States and European Union baseline
copyright terms "apparent[ly]" fails to achieve "significant"
uniformity.
Post, at 264. But see
infra this page and
206. The novelty of the "rational basis" approach he presents is
plain. Cf.
Board of Trustees of Univ. of Ala. v.
Garrett, 531
U. S. 356, 383 (2001) (BREYER, J., dissenting) ("Rational-basis
reviewwith its presumptions favoring constitutionality-is 'a
paradigm of
judicial restraint.''' (quoting
FCC v.
Beach Communications, Inc., 508 U. S. 307, 314
(1993))). Rather than subjecting Congress' legislative choices in
the copyright area to heightened judicial scrutiny, we have
stressed that "it is not our role to alter the delicate balance
Congress has labored to achieve."
Stewart v.
Abend,
495 U. S., at 230; see
Sony Corp. of America v.
Universal
City Studios, Inc., 464 U. S. 417, 429
(1984). Congress' exercise of its Copyright Clause authority must
be rational, but JUSTICE BREYER'S stringent version of rationality
is unknown to our literary property jurisprudence.
206
ceive the same copyright protection in Europe as their European
counterparts.ll The CTEA may also provide greater incentive for
American and other authors to create and disseminate their work in
the United States. See Perlmutter, Participation in the
International Copyright System as a Means to Promote the Progress
of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 330 (2002)
("[M]atching thee] level of [copyright] protection in the United
States [to that in the EU] can ensure stronger protection for U. S.
works abroad and avoid competitive disadvantages vis-a-vis foreign
rightholders."); see also id., at 332 (the United States could not
"playa leadership role" in the give-and-take evolution of the
international copyright system, indeed it would "lose all
flexibility," "if the only way to promote the progress of science
were to provide incentives to create new works")P
In addition to international concerns,13 Congress passed the
CTEA in light of demographic, economic, and technologi-
11 Responding to an inquiry whether copyrights could be extended
"forever," Register of Copyrights Marybeth Peters emphasized the
dominant reason for the CTEA: "There certainly are proponents of
perpetual copyright: We heard that in our proceeding on term
extension. The Songwriters Guild suggested a perpetual term.
However, our Constitution says limited times, but there really
isn't a very good indication on what limited times is. The reason
why you're going to life-plus-70 today is because Europe has gone
that way .... " Copyright Term, Film Labeling, and Film
Preservation Legislation: Hearings on H. R. 989 et al. before the
Subcommittee on Courts and Intellectual Property of the House
Committee on the Judiciary, 104th Cong., 1st Sess., 230 (1995)
(hereinafter House Hearings).
12 The author of the law review article cited in text, Shira
Perlmutter, currently a vice president of AOL Time Warner, was at
the time of the CTEA's enactment Associate Register for Policy and
International
Mfairs, United States Copyright Office.
13 See also Austin, Does the Copyright Clause Mandate
Isolationism? 26 Colum. J. L. & Arts 17, 59 (2002) (cautioning
against "an isolationist reading of the Copyright Clause that is in
tension with ... America's international copyright relations over
the last hundred or so years").
207
cal changes, Brief for Respondent 25-26, 33, and nn. 23 and
24,14 and rationally credited projections that longer terms would
encourage copyright holders to invest in the restoration and public
distribution of their works, id., at 34-37; see H. R. Rep. No.
105-452, p. 4 (1998) (term extension "provide[s] copyright owners
generally with the incentive to restore older works and further
disseminate them to the public"). 15
14 Members of Congress expressed the view that, as a result of
increases in human longevity and in parents' average age when their
children are born, the pre-CTEA term did not adequately secure "the
right to profit from licensing one's work during one's lifetime and
to take pride and comfort in knowing that one's children-and
perhaps their children-might also benefit from one's posthumous
popularity." 141 Congo Rec. 6553 (1995) (statement of Sen.
Feinstein); see 144 Congo Rec. S12377 (daily ed. Oct. 12, 1998)
(statement of Sen. Hatch) ("Among the main developments [compelling
reconsideration of the 1976 Act's term] is the effect of
demographic trends, such as increasing longevity and the trend
toward rearing children later in life, on the effectiveness of the
life-plus-50 term to provide adequate protection for American
creators and their heirs."). Also cited was "the failure of the U.
S. copyright term to keep pace with the substantially increased
commercial life of copyrighted works resulting from the rapid
growth in communications media."
Ibid. (statement of Sen.
Hatch); cf.
Sony, 464 U. S., at 430-431 ("From its
beginning, the law of copyright has developed in response to
significant changes in technology .... [A]s new developments have
occurred in this country, it has been the Congress that has
fashioned the new rules that new technology made necessary.").
15 JUSTICE BREYER urges that the economic incentives
accompanying copyright term extension are too insignificant to
"mov[e]" any author with a "rational economic perspective."
Post, at 255; see
post, at 254-257. Calibrating
rational economic incentives, however, like "fashion[ing] ... new
rules [in light of] new technology,"
Sony, 464 U. S., at
431, is a task primarily for Congress, not the courts. Congress
heard testimony from a number of prominent artists; each expressed
the belief that the copyright system's assurance offair
compensation for themselves and their heirs was an incentive to
create. See,
e. g., House Hearings 233-239 (statement of
Quincy Jones); Copyright Term Extension Act of 1995: Hearing before
the Senate Committee on the Judiciary, 104th Cong., 1st Sess.,
55-56 (1995)
208
In sum, we find that the CTEA is a rational enactment; we are
not at liberty to second-guess congressional determinations and
policy judgments of this order, however debatable or arguably
unwise they may be. Accordingly, we cannot conclude that the
CTEA-which continues the unbroken congressional practice of
treating future and existing copyrights in parity for term
extension purposes-is an impermissible exercise of Congress' power
under the Copyright Clause.
B
Petitioners' Copyright Clause arguments rely on several novel
readings of the Clause. We next address these arguments and explain
why we find them unpersuasive.
1
Petitioners contend that even if the CTEA's 20-year term
extension is literally a "limited Tim[e]," permitting Congress to
extend existing copyrights allows it to evade the "limited Times"
constraint by creating effectively perpetual copyrights through
repeated extensions. We disagree.
(statement of Bob Dylan); id., at 56-57 (statement of Don
Henley); id., at 57 (statement of Carlos Santana). We would not
take Congress to task for crediting this evidence which, as JUSTICE
BREYER acknowledges, reflects general "propositions about the value
of incentives" that are "undeniably true."
Post, at 255.
Congress also heard testimony from Register of Copyrights
Marybeth Peters and others regarding the economic incentives
created by the CTEA. According to the Register, extending the
copyright for existing works "could ... provide additional income
that would finance the production and publication of new works."
House Hearings 158. "Authors would not be able to continue to
create," the Register explained, "unless they earned income on
their finished works. The public benefits not only from an author's
original work but also from his or her further creations. Although
this truism may be illustrated in many ways, one of the best
examples is Noah Webster[,] who supported his entire family from
the earnings on his speller and grammar during the twenty years he
took to complete his dictionary."
Id., at 165.
209
As the Court of Appeals observed, a regime of perpetual
copyrights "clearly is not the situation before us." 239 F. 3d, at
379. Nothing before this Court warrants construction of the CTEA's
20-year term extension as a congressional attempt to evade or
override the "limited Times" constraint.16 Critically, we again
emphasize, petitioners fail to
16 JUSTICE BREYER agrees that "Congress did not intend to act
unconstitutionally" when it enacted the CTEA,
post, at 256,
yet in his very next breath, he seems to make just that accusation,
ibid. What else is one to glean from his selection of
scattered statements from individual Members of Congress? He does
not identify any statement in the statutory text that installs a
perpetual copyright, for there is none. But even if the statutory
text were sufficiently ambiguous to warrant recourse to legislative
history, JUSTICE BREYER'S selections are not the sort to which this
Court accords high value: "In surveying legislative history we have
repeatedly stated that the authoritative source for finding the
Legislature's intent lies in the Committee Reports on the bill,
which 'represen[t] the considered and collective understanding of
those [Members of Congress] involved in drafting and studying
proposed legislation.'''
Garcia v.
United States,
469 U. S. 70, 76
(1984) (quoting
Zuber v.
Allen, 396 U. S. 168,186
(1969)). The House and Senate Reports accompanying the CTEA reflect
no purpose to make copyright a forever thing. Notably, the Senate
Report expressly acknowledged that the Constitution "clearly
precludes Congress from granting unlimited protection for
copyrighted works," S. Rep. No. 104-315, p. 11 (1996), and
disclaimed any intent to contravene that prohibition,
ibid.
Members of Congress instrumental in the CTEA's passage spoke to
similar effect. See,
e. g., 144 Congo Rec. H1458 (daily ed.
Mar. 25, 1998) (statement of Rep. Coble) (observing that "copyright
protection should be for a limited time only" and that "[p]erpetual
protection does not benefit society").
JUSTICE BREYER nevertheless insists that the "economic effect"
of the CTEA is to make the copyright term "virtually perpetual."
Post, at 243. Relying on formulas and assumptions provided
in an
amicus brief supporting petitioners, he stresses that
the CTEA creates a copyright term worth 99.8% of the value of a
perpetual copyright.
Post, at 254-256. If JUSTICE BREYER'S
calculations were a basis for holding the CTEA unconstitutional,
then the 1976 Act would surely fall as well, for-under the same
assumptions he indulges-the term set by that Act secures 99.4% of
the value of a perpetual term. See Brief for George A. Akerlof et
al. as
Amici Curiae 6, n. 6 (describing the relevant
formula). Indeed, on that analysis even the "limited" character of
the 1909 (97.7%) and 1831 (94.1%)
210
show how the CTEA crosses a constitutionally significant
threshold with respect to "limited Times" that the 1831, 1909, and
1976 Acts did not. See
supra, at 194-196; Austin,
supra n. 13, at 56 ("If extending copyright protection to
works already in existence is constitutionally suspect," so is
"extending the protections of U. S. copyright law to works by
foreign authors that had already been created and even first
published when the federal rights attached."). Those earlier Acts
did not create perpetual copyrights, and neither does the
CTEA.17
2
Petitioners dominantly advance a series of arguments all
premised on the proposition that Congress may not extend an
existing copyright absent new consideration from the author. They
pursue this main theme under three headings. Petitioners contend
that the CTEA's extension of existing copyrights (1) overlooks the
requirement of "originality," (2) fails to "promote the Progress of
Science," and (3) ignores copyright's
quid pro quo.
Acts might be suspect. JUSTICE BREYER several times places the
Founding Fathers on his side. See,
e. g.,
post, at
246-247, 260, 261. It is doubtful, however, that those architects
of our Nation, in framing the "limited Times" prescription, thought
in terms of the calculator rather than the calendar.
17 Respondent notes that the CTEA's life-plus-70-years baseline
term is expected to produce an average copyright duration of 95
years, and that this term "resembles some other long-accepted
durational practices in the law, such as 99-year leases of real
property and bequests within the rule against perpetuities."
Brieffor Respondent 27, n. 18. Whether such referents mark the
outer boundary of "limited Times" is not before us today. JUSTICE
BREYER suggests that the CTEA's baseline term extends beyond that
typically permitted by the traditional rule against perpetuities.
Post, at 256-257. The traditional common-law rule looks to
lives in being plus 21 years. Under that rule, the period before a
bequest vests could easily equal or exceed the anticipated average
copyright term under the CTEA. If, for example, the vesting period
on a deed were defined with reference to the life of an infant, the
sum of the measuring life plus 21 years could commonly add up to 95
years.
211
Petitioners' "originality" argument draws on
Feist
Publications, Inc. v.
Rural Telephone Service Co.,
499 U. S. 340
(1991). In
Feist, we observed that "[t]he
sine qua
non of copyright is originality," id., at 345, and held that
copyright protection is unavailable to "a narrow category of works
in which the creative spark is utterly lacking or so trivial as to
be virtually nonexistent,"
id., at 359. Relying on
Feist, petitioners urge that even if a work is sufficiently
"original" to qualify for copyright protection in the first
instance, any extension of the copyright's duration is
impermissible because, once published, a work is no longer
original.
Feist, however, did not touch on the duration of
copyright protection. Rather, the decision addressed the core
question of copyrightability, i.
e., the "creative spark" a
work must have to be eligible for copyright protection at all.
Explaining the originality requirement,
Feist trained on the
Copyright Clause words "Authors" and "Writings."
Id., at
346-347. The decision did not construe the "limited Times" for
which a work may be protected, and the originality requirement has
no bearing on that prescription.
More forcibly, petitioners contend that the CTEA's extension of
existing copyrights does not "promote the Progress of Science" as
contemplated by the preambular language of the Copyright Clause.
Art. I, § 8, cl. 8. To sustain this objection, petitioners do not
argue that the Clause's preamble is an independently enforceable
limit on Congress' power. See 239 F. 3d, at 378 (Petitioners
acknowledge that "the preamble of the Copyright Clause is not a
substantive limit on Congress' legislative power." (internal
quotation marks omitted)). Rather, they maintain that the
preambular language identifies the sole end to which Congress may
legislate; accordingly, they conclude, the meaning of "limited
Times" must be "determined in light of that specified end." Brief
for Petitioners 19. The CTEA's extension of existing copyrights
categorically fails to "promote the Progress of Science,"
petitioners argue, because it does not stimulate the
212
creation of new works but merely adds value to works already
created.
As petitioners point out, we have described the Copyright Clause
as "both a grant of power and a limitation,"
Graham v.
John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966), and
have said that "[t]he primary objective of copyright" is "[t]o
promote the Progress of Science,"
Feist, 499 U. S., at 349.
The "constitutional command," we have recognized, is that Congress,
to the extent it enacts copyright laws at all, create a "system"
that "promote[s] the Progress of Science."
Graham, 383 U.
S., at 6.18
We have also stressed, however, that it is generally for
Congress, not the courts, to decide how best to pursue the
Copyright Clause's objectives. See
Stewart v.
Abend,
495 U. S., at 230 ("Th[e] evolution of the duration of
copyright protection tellingly illustrates the difficulties
Congress faces .... [I]t is not our role to alter the delicate
balance
18JUSTICE STEVENS' characterization of reward to the author as
"a secondary consideration" of copyright law,
post, at 227,
n. 4 (internal quotation marks omitted), understates the
relationship between such rewards and the "Progress of Science." As
we have explained, "[t]he economic philosophy behind the
[Copyright] [C]lause ... is the conviction that encouragement of
individual effort by personal gain is the best way to advance
public welfare through the talents of authors and inventors."
Mazer v.
Stein, 347 U. S. 201, 219
(1954). Accordingly, "copyright law
celebrates the profit
motive, recognizing that the incentive to profit from the
exploitation of copyrights will redound to the public benefit by
resulting in the proliferation of knowledge .... The profit motive
is the engine that ensures the progress of science."
American
Geophysical Union v.
Texaco Inc., 802 F. Supp. 1, 27
(SDNY 1992), aff'd,
60 F.3d
913 (CA2 1994). Rewarding authors for their creative
labor and "promot[ing] ... Progress" are thus complementary; as
James Madison observed, in copyright "[t]he public good fully
coincides ... with the claims of individuals." The Federalist No.
43, p. 272 (C. Rossiter ed. 1961). JUSTICE BREYER'S assertion that
"copyright statutes must serve public, not private, ends,"
post, at 247, similarly misses the mark. The two ends are
not mutually exclusive; copyright law serves public ends by
providing individuals with an incentive to pursue private ones.
213
Congress has labored to achieve.");
Sony, 464 U. S., at
429 ("[I]t is Congress that has been assigned the task of defining
the scope of [rights] that should be granted to authors or to
inventors in order to give the public appropriate access to their
work product.");
Graham, 383 U. S., at 6 ("Within the limits
of the constitutional grant, the Congress may, of course, implement
the stated purpose of the Framers by selecting the policy which in
its judgment best effectuates the constitutional aim."). The
justifications we earlier set out for Congress' enactment of the
CTEA,
supra, at 205-207, provide a rational basis for the
conclusion that the CTEA "promote[s] the Progress of Science."
On the issue of copyright duration, Congress, from the start,
has routinely applied new definitions or adjustments of the
copyright term to both future works and existing works not yet in
the public domain.19 Such consistent congressional practice is
entitled to "very great weight, and when it is remembered that the
rights thus established have not been disputed during a period of
[over two] centur[ies], it is almost conclusive."
Burrow-Giles
Lithographic Co. v.
Sarony, 111 U. S., at 57. Indeed,
"[t]his Court has repeatedly laid down the principle that a
contemporaneous legislative exposition of the Constitution when the
founders of our Government and framers of our Constitution were
actively participating in public affairs, acquiesced in for a long
term of years, fixes the construction to be given [the
Constitution's] provisions."
Myers v.
United States,
272 U. S. 52, 175
(1926). Congress' unbroken practice since the founding gen-
19 As we have noted, see
supra, at 196, n. 3, petitioners
seek to distinguish the 1790 Act from those that followed. They
argue that by requiring authors seeking its protection to surrender
whatever rights they had under state law, the 1790 Act enhanced
uniformity and certainty and thus "promote[d] ... Progress." See
Brief for Petitioners 28-31. This account of the 1790 Act simply
confirms, however, that the First Congress understood it could
"promote ... Progress" by extending copyright protection to
existing works. Every subsequent adjustment of copyright's
duration, including the CTEA, reflects a similar understanding.
214
eration thus overwhelms petitioners' argument that the CTEA's
extension of existing copyrights fails
per se to "promote
the Progress of Science." 20
Closely related to petitioners' preambular argument, or a
variant of it, is their assertion that the Copyright Clause "imbeds
a quid pro quo." Brief for Petitioners 23. They contend, in this
regard, that Congress may grant to an "Autho[r]" an "exclusive
Right" for a "limited Tim[e]," but only in exchange for a
"Writin[g]." Congress' power to confer copyright protection,
petitioners argue, is thus contingent upon an exchange: The author
of an original work receives an "exclusive Right" for a "limited
Tim[e]" in exchange for a dedication to the public thereafter.
Extending an existing copyright without demanding additional
consideration, petitioners maintain, bestows an unpaid-for benefit
on copyright holders and their heirs, in violation of the
quid
pro quo requirement.
We can demur to petitioners' description of the Copyright Clause
as a grant of legislative authority empowering Congress "to secure
a bargain-this for that."
Id., at 16; see
Mazer v.
Stein, 347 U.
S. 201, 219 (1954) ("The economic philosophy behind the clause
empowering Congress to grant patents and copyrights is the
conviction that encouragement of individual effort by personal gain
is the best way to advance public welfare through the talents of
authors and inventors in 'Science and useful Arts.' "). But the
legislative evolution earlier recalled demonstrates what the
bargain entails. Given the consistent placement of existing
copyright
20 JUSTICE STEVENS,
post, at 235, refers to the
"legislative veto" held unconstitutional in
INS v.
Chadha, 462 U.
S. 919 (1983), and observes that we reached that decision
despite its impact on federal laws geared to our "contemporary
political system," id., at 967 (White, J., dissenting). Placing
existing works in parity with future works for copyright purposes,
in contrast, is not a similarly pragmatic endeavor responsive to
modern times. It is a measure of the kind Congress has enacted
under its Patent and Copyright Clause authority since the founding
generation. See
supra, at 194-196.
215
holders in parity with future holders, the author of a work
created in the last 170 years would reasonably comprehend, as the
"this" offered her, a copyright not only for the time in place when
protection is gained, but also for any renewal or extension
legislated during that time.21 Congress could rationally seek to
"promote ... Progress" by including in every copyright statute an
express guarantee that authors would receive the benefit of any
later legislative extension of the copyright term. Nothing in the
Copyright Clause bars Congress from creating the same incentive by
adopting the same position as a matter of unbroken practice. See
Brief for Respondent 31-32.
Neither
Sears, Roebuck &
Co. v.
Stiffel
Co., 376 U. S.
225 (1964), nor
Bonito Boats, Inc. v.
Thunder Craft
Boats, Inc., 489
U. S. 141 (1989), is to the contrary. In both cases, we
invalidated the application of certain state laws as inconsistent
with the federal patent regime.
Sears, 376 U. S., at
231
233; Bonito, 489 U. S., at 152. Describing Congress'
constitutional authority to confer patents,
Bonito Boats
noted:
"The Patent Clause itself reflects a balance between the need to
encourage innovation and the avoidance of monopolies which stifle
competition without any concomitant advance in the 'Progress of
Science and useful Arts.'"
Id., at 146.
21 Standard copyright assignment agreements reflect this
expectation.
See,
e. g., A. Kohn & B. Kohn, Music Licensing 471
(3d ed. 1992-2002) (short form copyright assignment for musical
composition, under which assignor conveys all rights to the work,
"including the copyrights and proprietary rights therein and in any
and all versions of said musical composition(s), and any renewals
and extensions thereof (whether presently available
or
subsequently available as a result of intervening legislation)"
(emphasis added)); 5 M. Nimmer & D. Nimmer, Copyright
§21.11[B], p. 21-305 (2002) (short form copyright assignment under
which assignor conveys all assets relating to the work, "including
without limitation, copyrights and renewals and/or extensions
thereof"); 6 id., § 30.04[B][1], p. 30-325 (form composer-producer
agreement under which composer "assigns to Producer all rights
(copyrights, rights under copyright and otherwise, whether now or
hereafter known) and all renewals and extensions (as may now or
hereafter exist)").
216
Sears similarly stated that "[p]atents are not given as
favors ... but are meant to encourage invention by rewarding the
inventor with the right, limited to a term of years fixed by the
patent, to exclude others from the use of his invention." 376 U.
S., at 229. Neither case concerned the extension of a patent's
duration. Nor did either suggest that such an extension might be
constitutionally infirm. Rather,
Bonito Boats reiterated the
Court's unclouded understanding: "It is for Congress to determine
if the present system" effectuates the goals of the Copyright and
Patent Clause. 489 U. S., at 168. And as we have documented, see
supra, at 201-204, Congress has many times sought to
effectuate those goals by extending existing patents.
We note, furthermore, that patents and copyrights do not entail
the same exchange, and that our references to a
quid pro quo
typically appear in the patent context. See,
e. g., J.
E.
M. Ag Supply, Inc. v.
Pioneer Hi-Bred International,
Inc., 534 U. S.
124, 142 (2001) ("The disclosure required by the Patent Act is
'the
quid pro quo of the right to exclude.'" (quoting
Kewanee Oil Co. v.
Bicron Corp., 416 U. S. 470, 484
(1974))); Bonito Boats, 489 U. S., at 161 ("the
quid pro
quo of substantial creative effort required by the federal
[patent] statute");
Brenner v.
Manson, 383 U. S. 519, 534 (1966)
("The basic
quid pro quo ... for granting a patent monopoly
is the benefit derived by the public from an invention with
substantial utility.");
Pennock v.
Dialogue, 2 Pet.
1, 23 (1829) (If an invention is already commonly known and used
when the patent is sought, "there might be sound reason for
presuming, that the legislature did not intend to grant an
exclusive right," given the absence of a
"quid pro quo.").
This is understandable, given that immediate disclosure is not the
objective of, but is
exacted from, the patentee. It is the
price paid for the exclusivity secured. See J.
E. M. Ag
Supply, 534 U. S., at 142. For the author seeking copyright
protection, in contrast, disclosure is the desired objective, not
something exacted from the author in exchange for the copy-
217
right. Indeed, since the 1976 Act, copyright has run from
creation, not publication. See 1976 Act § 302(a); 17 U. S. C. §
302(a).
Further distinguishing the two kinds of intellectual property,
copyright gives the holder no monopoly on any knowledge. A reader
of an author's writing may make full use of any fact or idea she
acquires from her reading. See § 102(b). The grant of a patent, on
the other hand, does prevent full use by others of the inventor's
knowledge. See Brief for Respondent 22;
Alfred Bell &
Co. v.
Catalda Fine Arts, 191 F. 2d 99, 103, n. 16
(CA2 1951) (The monopoly granted by a copyright "is not a monopoly
of knowledge. The grant of a patent does prevent full use being
made of knowledge, but the reader of a book is not by the copyright
laws prevented from making full use of any information he may
acquire from his reading." (quoting W. Copinger, Law of Copyright 2
(7th ed. 1936))). In light of these distinctions, one cannot
extract from language in our patent decisions-language not trained
on a grant's duration-genuine support for petitioners' bold view.
Accordingly, we reject the proposition that a
quid pro quo
requirement stops Congress from expanding copyright's term in a
manner that puts existing and future copyrights in parity.22
3
As an alternative to their various arguments that extending
existing copyrights violates the Copyright Clause
per se,
petitioners urge heightened judicial review of such extensions to
ensure that they appropriately pursue the purposes of the Clause.
See Brief for Petitioners 31-32. Specifically,
22 The fact that patent and copyright involve different
exchanges does not, of course, mean that we may not be guided in
our "limited Times" analysis by Congress' repeated extensions of
existing patents. See
supra, at 201-204. If patent's
quid
pro quo is more exacting than copyright's, then Congress'
repeated extension of existing patents without constitutional
objection suggests even more strongly that similar legislation with
respect to copyrights is constitutionally permissible.
218
petitioners ask us to apply the "congruence and proportionality"
standard described in cases evaluating exercises of Congress' power
under § 5 of the Fourteenth Amendment. See,
e. g., City
of Boerne v.
Flores, 521 U. S. 507 (1997). But
we have never applied that standard outside the § 5 context; it
does not hold sway for judicial review of legislation enacted, as
copyright laws are, pursuant to Article I authorization.
Section 5 authorizes Congress to
enforce commands
contained in and incorporated into the Fourteenth Amendment. Arndt.
14, § 5 ("The Congress shall have power to
enforce, by
appropriate legislation, the provisions of this article." (emphasis
added)). The Copyright Clause, in contrast, empowers Congress to
define the scope of the substantive right. See
Sony,
464 U. S., at 429. Judicial deference to such congressional
definition is "but a corollary to the grant to Congress of any
Article I power."
Graham, 383 U. S., at 6. It would be no
more appropriate for us to subject the CTEA to "congruence and
proportionality" review under the Copyright Clause than it would be
for us to hold the Act unconstitutional
per se.
For the several reasons stated, we find no Copyright Clause
impediment to the CTEA's extension of existing copyrights.
III
Petitioners separately argue that the CTEA is a contentneutral
regulation of speech that fails heightened judicial review under
the First Amendment.23 We reject petitioners'
23 Petitioners originally framed this argument as implicating
the CTEA's extension of both existing and future copyrights. See
Pet. for Cert. i. Now, however, they train on the CTEA's extension
of existing copyrights and urge against consideration of the CTEA's
First Amendment validity as applied to future copyrights. See Brief
for Petitioners 39-48; Reply Brief 16-17; Tr. of Oral Arg. 11-13.
We therefore consider petitioners' argument as so limited. We note,
however, that petitioners do not explain how their First Amendment
argument is moored to the prospective/ retrospective line they urge
us to draw, nor do they say whether or how their
219
plea for imposition of uncommonly strict scrutiny on a copyright
scheme that incorporates its own speech-protective purposes and
safeguards. The Copyright Clause and First Amendment were adopted
close in time. This proximity indicates that, in the Framers' view,
copyright's limited monopolies are compatible with free speech
principles. Indeed, copyright's purpose is to
promote the
creation and publication of free expression. As
Harper &
Row observed: "[T]he Framers intended copyright itself to be
the engine of free expression. By establishing a marketable right
to the use of one's expression, copyright supplies the economic
incentive to create and disseminate ideas." 471 U. S., at 558.
In addition to spurring the creation and publication of new
expression, copyright law contains built-in First Amendment
accommodations. See id., at 560. First, it distinguishes between
ideas and expression and makes only the latter eligible for
copyright protection. Specifically, 17 U. S. C. § 102(b) provides:
"In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method
of operation, concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated, or embodied
in such work." As we said in
Harper &
Row, this
"idea/expression dichotomy strike[s] a definitional balance between
the First Amendment and the Copyright Act by permitting free
communication of facts while still protecting an author's
expression." 471 U. S., at 556 (internal quotation marks omitted).
Due to this distinction, every idea, theory, and fact in a
copyrighted work becomes instantly available for public
exploitation at the moment of publication. See
Feist, 499 U.
S., at 349-350.
Second, the "fair use" defense allows the public to use not only
facts and ideas contained in a copyrighted work, but also
expression itself in certain circumstances. Codified at 17 U. S. C.
§ 107, the defense provides: "[T]he fair use of a
free speech argument applies to copyright duration but not to
other aspects of copyright protection, notably scope.
220
copyrighted work, including such use by reproduction in copies
... , for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright." The
fair use defense affords considerable "latitude for scholarship and
comment,"
Harper &
Row, 471 U. S., at 560, and
even for parody, see
Campbell v.
Acuff-Rose Music,
Inc., 510 U. S.
569 (1994) (rap group's musical parody of Roy Orbison's "Oh,
Pretty Woman" may be fair use).
The CTEA itself supplements these traditional First Amendment
safeguards. First, it allows libraries, archives, and similar
institutions to "reproduce" and "distribute, display, or perform in
facsimile or digital form" copies of certain published works
"during the last 20 years of any term of copyright ... for purposes
of preservation, scholarship, or research" if the work is not
already being exploited commercially and further copies are
unavailable at a reasonable price. 17 U. S. C. § 108(h); see Brief
for Respondent 36. Second, Title II of the CTEA, known as the
Fairness in Music Licensing Act of 1998, exempts small businesses,
restaurants, and like entities from having to pay performance
royalties on music played from licensed radio, television, and
similar facilities. 17 U. S. C. § 1l0(5)(B); see Brief for
Representative F. James Sensenbrenner, Jr., et al. as
Amici
Curiae 5-6, n. 3.
Finally, the case petitioners principally rely upon for their
First Amendment argument,
Turner Broadcasting System, Inc.
v.
FCC, 512 U.
S. 622 (1994), bears little on copyright. The statute at issue
in
Turner required cable operators to carry and transmit
broadcast stations through their proprietary cable systems. Those
"must-carry" provisions, we explained, implicated "the heart of the
First Amendment," namely, "the principle that each person should
decide for himself or herself the ideas and beliefs deserving of
expression, consideration, and adherence."
Id., at 641.
221
The CTEA, in contrast, does not oblige anyone to reproduce
another's speech against the carrier's will. Instead, it protects
authors' original expression from unrestricted exploitation.
Protection of that order does not raise the free speech concerns
present when the government compels or burdens the communication of
particular facts or ideas. The First Amendment securely protects
the freedom to makeor decline to make-one's own speech; it bears
less heavily when speakers assert the right to make other people's
speeches. To the extent such assertions raise First Amendment
concerns, copyright's built-in free speech safeguards are generally
adequate to address them. We recognize that the D. C. Circuit spoke
too broadly when it declared copyrights "categorically immune from
challenges under the First Amendment." 239 F. 3d, at 375. But when,
as in this case, Congress has not altered the traditional contours
of copyright protection, further First Amendment scrutiny is
unnecessary. See
Harper &
Row, 471 U. S., at 560;
cf.
San Francisco Arts &
Athletics, Inc. v.
United States Olympic Comm., 483 U. S. 522
(1987).24
IV
If petitioners' vision of the Copyright Clause held sway, it
would do more than render the CTEA's duration extensions
unconstitutional as to existing works. Indeed, petitioners'
assertion that the provisions of the CTEA are not severable would
make the CTEA's enlarged terms invalid even as to
24 We are not persuaded by petitioners' attempt to distinguish
Harper & Row on the ground that it involved an
infringement suit rather than a declaratory action of the kind here
presented. As respondent observes, the same legal question can
arise in either posture. See Brief for Respondent 42. In both
postures, it is appropriate to construe copyright's internal
safeguards to accommodate First Amendment concerns. Cf.
United
States v.
X-Citement Video, Inc., 513 U. S. 64, 78 (1994)
("It is ... incumbent upon us to read the statute to eliminate
[serious constitutional] doubts so long as such a reading is not
plainly contrary to the intent of Congress.").
222
tomorrow's work. The 1976 Act's time extensions, which set the
pattern that the CTEA followed, would be vulnerable as well.
As we read the Framers' instruction, the Copyright Clause
empowers Congress to determine the intellectual property regimes
that, overall, in that body's judgment, will serve the ends of the
Clause. See
Graham, 383 U. S., at 6 (Congress may "implement
the stated purpose of the Framers by selecting the policy which
in its judgment best effectuates the constitutional aim."
(emphasis added)). Beneath the facade of their inventive
constitutional interpretation, petitioners forcefully urge that
Congress pursued very bad policy in prescribing the CTEA's long
terms. The wisdom of Congress' action, however, is not within our
province to second-guess. Satisfied that the legislation before us
remains inside the domain the Constitution assigns to the First
Branch, we affirm the judgment of the Court of Appeals.
It is so ordered.
JUSTICE STEVENS, dissenting.
Writing for a unanimous Court in 1964, Justice Black stated that
it is obvious that a State could not "extend the life of a patent
beyond its expiration date,"
Sears, Roebuck & Co. v.
Stiffel Co., 376 U. S. 225, 231
(1964).1 As I shall explain, the reasons why a State may not extend
the life of a patent apply to Congress as well. If Congress may not
expand the scope of a patent monopoly, it also may not extend
IJustice Harlan wrote a brief concurrence, but did not disagree
with this statement. Justice Black's statement echoed a portion of
Attorney General Wirt's argument in
Gibbons v.
Ogden,
9 Wheat. 1, 171 (1824):
"The law of Congress declares, that all inventors of useful
improvements throughout the United States, shall be entitled to the
exclusive right in their discoveries for fourteen years
only. The law of New-York declares, that this inventor shall
be entitled to the exclusive use of his discovery for thirty years,
and as much longer as the State shall permit. The law of Congress,
by limiting the exclusive right to fourteen years, in effect
declares, that after the expiration of that time, the discovery
shall be the common right of the whole people of the United
States."
223
the life of a copyright beyond its expiration date. Accordingly,
insofar as the 1998 Sonny Bono Copyright Term Extension Act, 112
Stat. 2827, purported to extend the life of unexpired copyrights,
it is invalid. Because the majority's contrary conclusion rests on
the mistaken premise that this Court has virtually no role in
reviewing congressional grants of monopoly privileges to authors,
inventors, and their successors, I respectfully dissent.
I
The authority to issue copyrights stems from the same Clause in
the Constitution that created the patent power. It provides:
"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." Art. I, § 8, cl. 8.
It is well settled that the Clause is "both a grant of power and
a limitation" and that Congress "may not overreach the restraints
imposed by the stated constitutional purpose."
Graham v.
John Deere Co. of Kansas City, 383 U. S. 1, 5-6 (1966). As
we have made clear in the patent context, that purpose has two
dimensions. Most obviously the grant of exclusive rights to their
respective writings and discoveries is intended to encourage the
creativity of "Authors and Inventors." But the requirement that
those exclusive grants be for "limited Times" serves the ultimate
purpose of promoting the "Progress of Science and useful Arts" by
guaranteeing that those innovations will enter the public domain as
soon as the period of exclusivity expires:
"Once the patent issues, it is strictly construed, United
States v. Masonite Corp., 316 U. S. 265, 280
(1942), it cannot be used to secure any monopoly beyond that
contained in the patent, Morton Salt Co. v. G. S.
Suppiger Co., 314 U. S. 488, 492
(1942), ... and especially relevant
224
here, when the patent expires the monopoly created by it
expires, too, and the right to make the article-including the right
to make it in precisely the shape it carried when patented-passes
to the public. Kellogg Co. v. National Biscuit Co.,
305 U. S. 111,
120-122 (1938); Singer Mfg. Co. v. June Mfg. Co.,
163 U. S. 169,
185 (1896)." Sears, Roebuck & Co., 376 U. S., at
230.
It is that ultimate purpose that explains why a patent may not
issue unless it discloses the invention in such detail that one
skilled in the art may copy it. See,
e. g., Grant v.
Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) ("The
third section [of the 1793 Act] requires, as preliminary to a
patent, a correct specification and description of the thing
discovered. This is necessary in order to give the public, after
the privilege shall expire, the advantage for which the privilege
is allowed, and is the foundation of the power to issue the
patent"). Complete disclosure as a precondition to the issuance of
a patent is part of the
quid pro quo that justifies the
limited monopoly for the inventor as consideration for full and
immediate access by the public when the limited time expires.2
Almost two centuries ago the Court plainly stated that public
access to inventions at the earliest possible date was the
essential purpose of the Clause:
"While one great object was, by holding out a reasonable reward
to inventors and giving them an exclusive right to their inventions
for a limited period, to stimulate the efforts of genius; the main
object was 'to promote the
2 Attorney General Wirt made this precise point in his argument
in
Gibbons v.
Ogden, 9 Wheat., at 175: "The
limitation is not for the advantage of the inventor, but of society
at large, which is to take the benefit of the invention after the
period of limitation has expired. The patentee pays a duty on his
patent, which is an effective source of revenue to the United
States. It is virtually a contract between each patentee and the
people of the United States, by which the time of exclusive and
secure enjoyment is limited, and then the benefit of the discovery
results to the public."
225
progress of science and useful arts;' and this could be done
best, by giving the public at large a right to make, construct,
use, and vend the thing invented, at as early a period as possible,
having a due regard to the rights of the inventor. If an inventor
should be permitted to hold back from the knowledge of the public
the secrets of his invention; if he should for a long period of
years retain the monopoly, and make, and sell his invention
publicly, and thus gather the whole profits of it, relying upon his
superior skill and knowledge of the structure; and then, and then
only, when the danger of competition should force him to secure the
exclusive right, he should be allowed to take out a patent, and
thus exclude the public from any farther use than what should be
derived under it during his fourteen years; it would materially
retard the progress of science and the useful arts, and give a
premium to those, who should be least prompt to communicate their
discoveries." Pennock v. Dialogue, 2 Pet. 1, 18
(1829).
Pennock held that an inventor could not extend the period
of patent protection by postponing his application for the patent
while exploiting the invention commercially. As we recently
explained, "implicit in the Patent Clause itself" is the
understanding "that free exploitation of ideas will be the rule, to
which the protection of a federal patent is the exception.
Moreover, the ultimate goal of the patent system is to bring new
designs and technologies into the public domain through
disclosure."
Bonito Boats, Inc. v.
Thunder Craft Boats,
Inc., 489 U. S.
141, 151 (1989).
The issuance of a patent is appropriately regarded as a
quid
pro quo-the grant of a limited right for the inventor's
disclosure and subsequent contribution to the public domain. See,
e. g., Pfaff v.
Wells Electronics, Inc., 525 U. S. 55, 63 (1998)
("[T]he patent system represents a carefully crafted bargain that
encourages both the creation and the public disclosure of new and
useful advances in technology, in return
226
for an exclusive monopoly for a limited period of time"). It
would be manifestly unfair if, after issuing a patent, the
Government as a representative of the public sought to modify the
bargain by shortening the term of the patent in order to accelerate
public access to the invention. The fairness considerations that
underlie the constitutional protections against
ex post
facto laws and laws impairing the obligation of contracts would
presumably disable Congress from making such a retroactive change
in the public's bargain with an inventor without providing
compensation for the taking. Those same considerations should
protect members of the public who make plans to exploit an
invention as soon as it enters the public domain from a retroactive
modification of the bargain that extends the term of the patent
monopoly. As I discuss below, the few historical exceptions to this
rule do not undermine the constitutional analysis. For quite
plainly, the limitations "implicit in the Patent Clause itself,"
489 U. S., at 151, adequately explain why neither a State nor
Congress may "extend the life of a patent beyond its expiration
date,"
Sears, Roebuck &
Co., 376 U. S., at
231.3
Neither the purpose of encouraging new inventions nor the
overriding interest in advancing progress by adding knowledge to
the public domain is served by retroactively increasing the
inventor's compensation for a completed invention and frustrating
the legitimate expectations of members of the public who want to
make use of it in a free
3 The Court acknowledges that this proposition is "un
controversial" today, see
ante, at 202, n. 8, but overlooks
the fact that it was highly controversial in the early 1800's. See
n. 11,
infra. The Court assumes that the
Sears
holding rested entirely on the pre-emptive effect of congressional
statutes even though the opinion itself, like the opinions in
Graham v.
John Deere Co. of Kansas City, 383 U. S. 1 (1966), and
Bonito Boats, Inc. v.
Thunder Craft Boats, Inc.,
489 U. S. 141
(1989), also relied on the pre-emptive effect of the constitutional
provision. That at least some of the Framers recognized that the
Constitution itself imposed a limitation even before Congress acted
is demonstrated by Madison's letter, quoted in n. 6,
infra.
227
market. Because those twin purposes provide the only avenue for
congressional action under the Copyright/Patent Clause of the
Constitution, any other action is manifestly unconstitutional.
II
We have recognized that these twin purposes of encouraging new
works and adding to the public domain apply to copyrights as well
as patents. Thus, with regard to copyrights on motion pictures, we
have clearly identified the overriding interest in the "release to
the public of the products of [the author's] creative genius."
United States v.
Paramount Pictures, Inc., 334 U. S. 131, 158
(1948).4 And, as with patents, we have emphasized that the
overriding purpose of providing a reward for authors' creative
activity is to motivate that activity and "to allow the public
access to the products of their genius after the limited period of
exclusive control has expired."
Sony Corp. of America v.
Universal City Studios, Inc., 464 U. S. 417, 429
(1984).
Ex post facto extensions of copyrights result in a
gratuitous transfer of wealth from the public to authors,
publishers, and their successors in interest. Such retroactive
extensions do not even arguably serve either of the purposes of the
Copyright/ Patent Clause. The reasons why such extensions of the
patent monopoly are unconstitutional apply to copyrights as
well.
Respondent, however, advances four arguments in support of the
constitutionality of such retroactive extensions: (1) The first
Copyright Act enacted shortly after the Consti-
4 "The copyright law, like the patent statutes, makes reward to
the owner a secondary consideration. In
Fox Film Corp. v.
Doyal, 286 U.
S. 123, 127, Chief Justice Hughes spoke as follows respecting
the copyright monopoly granted by Congress, 'The sole interest of
the United States and the primary object in conferring the monopoly
lie in the general benefits derived by the public from the labors
of authors.' It is said that reward to the author or artist serves
to induce release to the public of the products of his creative
genius." 334 U. S., at 158.
228
tution was ratified applied to works that had already been
produced; (2) later Congresses have repeatedly authorized
extensions of copyrights and patents; (3) such extensions promote
the useful arts by giving copyright holders an incentive to
preserve and restore certain valuable motion pictures; and (4) as a
matter of equity, whenever Congress provides a longer term as an
incentive to the creation of new works by authors, it should
provide an equivalent reward to the owners of all unexpired
copyrights. None of these arguments is persuasive.
III
Congress first enacted legislation under the Copyright!
Patent Clause in 1790 when it passed bills creating federal
patent and copyright protection. Because the content of that first
legislation, the debate that accompanied it, and the differences
between the initial versions and the bills that ultimately passed
provide strong evidence of early Congresses' understanding of the
constitutional limits of the Copyright/ Patent Clause, I examine
both the initial copyright and patent statutes.
Congress first considered intellectual property statutes in its
inaugural session in 1789. The bill debated, House Resolution 10-"a
bill to promote the progress of science and useful arts, by
securing to authors and inventors the exclusive right to their
respective writings and discoveries," 3 Documentary History of
First Federal Congress of the United States 94 (L. de Pauw, C.
Bickford, & L. Hauptman eds. 1977) (hereinafter Documentary
History)-provided both copyright and patent protection for similar
terms.5 The first Congress did not pass H. R. 10, though a similar
version was
5 A copy of this bill specifically identified has not been
found, though strong support exists for considering a bill from
that session as H. R. 10. See E. Walterscheid, To Promote the
Progress of Useful Arts: American Patent Law and Administration,
1798-1836, pp. 87-88 (1998) (hereinafter Walterscheid). This bill
is reprinted in 4 Documentary History 513-519.
229
reintroduced in the second Congress in 1790. After minimal
debate, however, the House of Representatives began consideration
of two separate bills, one covering patents and the other
copyrights. Because, as the majority recognizes, "congressional
practice with respect to patents informs our inquiry,"
ante,
at 201, I consider the history of both patent and copyright
legislation.
The Patent Act
What eventually became the Patent Act of 1790 had its genesis in
House Resolution 41, introduced on February 16, 1790. That
resolution differed from H. R. 10 in one important respect. Whereas
H. R. 10 would have extended patent protection to only those
inventions that were "not before known or used," H. R. 41, by
contrast, added the phrase "within the United States" to that
limitation and expressly authorized patent protection for "any
person, who shall after the passing of this act, first import into
the United States ... any ... device ... not before used or known
in the said States." 6 Documentary History 1626-1632. This change
would have authorized patents of importation, providing United
States patent protection for inventions already in use elsewhere.
This change, however, was short lived and was removed by a floor
amendment on March 5, 1789. Walterscheid 125. Though exact records
of the floor debate are lost, correspondence from House Members
indicate that doubts about the constitutionality of such a
provision led to its removal. Representative Thomas Fitzsimmons
wrote to a leading industrialist that day stating that the section
"'allowing to Importers, was left out, the Constitutional power
being Questionable.'"
Id., at 126 (quoting Letter from Rep.
Thomas Fitzsimmons to Tench Coxe (Mar. 5, 1790)). James Madison
himself recognized this constitutionallimitation on patents of
importation, flatly stating that the constitution "forbids patents
for that purpose." 13 Pa-
230
pers of James Madison 128 (C. Hobson & R. Rutland eds. 1981)
(reprinting letter to Tench Coxe (Mar. 28, 1790)).6
The final version of the 1790 Patent Act, 1 Stat. 109, did not
contain the geographic qualifier and thus did not provide for
patents of importation. This statutory omission, coupled with the
contemporaneous statements by legislators, provides strong evidence
that Congress recognized significant limitations on their
constitutional authority under the Copyright/Patent Clause to
extend protection to a class of intellectual properties. This
recognition of a categorical constitutional limitation is
fundamentally at odds with the majority's reading of Article I, §
8, to provide essentially no limit on congressional action under
the Clause. If early congressional practice does, indeed, inform
our analysis, as it should, then the majority's judicial excision
of these constitutionallimits cannot be correct.
The Copyright Act
Congress also passed the first Copyright Act, 1 Stat. 124, in
1790. At that time there were a number of maps, charts, and books
that had already been printed, some of which were copyrighted under
state laws and some of which were arguably entitled to perpetual
protection under the common law. The federal statute applied to
those works as well as to new works. In some cases the application
of the new federal rule reduced the pre-existing protections, and
in others it
6 "Your idea of appropriating a district of territory to the
encouragement of imported inventions is new and worthy of
consideration. I can not but apprehend however that the clause in
the constitution which forbids patents for that purpose will lie
equally in the way of your expedient. Congress seem to be tied down
to the single mode of encouraging inventions by granting the
exclusive benefit of them for a limited time, and therefore to have
no more power to give a further encouragement out of a fund of land
than a fund of money. This fetter on the National Legislature tho'
an unfortunate one, was a deliberate one. The Latitude of authority
now wished for was strongly urged and expressly rejected."
Madison's description of the Copyright/Patent Clause as a "fetter
on the National Legislature" is fully consistent with this Court's
opinion in
Graham.
231
may have increased the protection.7 What is significant is that
the statute provided a general rule creating new federal rights
that supplanted the diverse state rights that previously existed.
It did not extend or attach to any of those pre-existing state and
common-law rights: "That congress, in passing the act of 1790, did
not legislate in reference to existing rights, appears clear."
Wheaton v.
Peters, 8 Pet. 591, 661 (1834); see also
Fox Film Corp. v.
Doyal, 286 U. S. 123, 127 (1932)
("As this Court has repeatedly said, the Congress did not sanction
an existing right but created a new one"). Congress set in place a
federal structure governing certain types of intellectual property
for the new Republic. That Congress exercised its unquestionable
constitutional authority to
create a new federal system
securing rights for authors and inventors in 1790 does not provide
support for the proposition that Congress can
extend
pre-existing federal protections retroactively.
Respondent places great weight on this first congressional
action, arguing that it proves that "Congress thus unquestionably
understood that it had authority to apply a new, more favorable
copyright term to existing works." Brief for Respondent 12-13. That
understanding, however, is not relevant to the question presented
by this case-whether "Congress has the power under the Copyright
Clause to extend retroactively the term of existing copyrights?"
Brief for
7 Importantly, even this first Act required a
quid pro
quo in order to receive federal copyright protection. In order
to receive protection under the Act, the author was first required
to register the work: "That no person shall be entitled to the
benefit of this act, in cases where any map, chart, book or books,
hath or have been already printed and published, unless he shall
first deposit, and in all other cases, unless he shall before
publication deposit a printed copy of the title of such map, chart,
book or books, in the clerk's office of the district court where
the author or proprietor shall reside." § 3, 1 Stat. 124. This
registration requirement in federal district court-a requirement
obviously not required under the various state laws protecting
written works-further illustrates that the 1790 Act created new
rights, rather than extending existing rights.
232
Petitioners i.8 Precisely put, the question presented by this
case does not even implicate the 1790 Act, for that Act created,
rather than extended, copyright protection. That this law applied
to works already in existence says nothing about the First
Congress' conception of its power to extend this newly created
federal right.
Moreover, Members of Congress in 1790 were well aware of the
distinction between the creation of new copyright regimes and the
extension of existing copyrights. The 1790 Act was patterned, in
many ways, after the Statute of Anne enacted in England in 1710. 8
Ann., c. 19; see
Fred Fisher Music Co. v.
M. Witmark
&
Sons, 318 U. S. 643, 647-648
(1943). The English statute, in addition to providing authors with
copyrights on new works for a term of 14 years renewable for
another 14-year term, also replaced the booksellers' claimed
perpetual rights in existing works with a single 21-year term. In
1735, the booksellers proposed an amendment that would have
extended the terms of existing copyrights until 1756, but the
amendment was defeated. Opponents of the amendment had argued that
if the bill were to pass, it would "in Effect be establishing a
perpetual Monopoly ... only to increase the private Gain of the
8 Respondent's reformulation of the questions presented by this
case confuses this basic distinction. We granted certiorari to
consider the question: "Did the D. C. Circuit err in holding that
Congress has the power under the Copyright Clause to extend
retroactively the term of existing copyrights?" Respondent's
reformulation of the first question presented-''Whether the 20-year
extension of the terms of all unexpired copyrights ... violates the
Copyright Clause of the Constitution insofar as it applies to works
in existence when it took effect"-significantly changes the
substance of inquiry by changing the focus from the federal statute
at issue to irrelevant common-law protections. Brieffor Respondent
I. Indeed, this reformulation violated this Court's Rule 24(1)(a),
which states that "the brief [on the merits] may not raise
additional questions or change the substance of the questions
already presented in" the petition for certiorari.
233
Booksellers .... " 9 The authors of the federal statute that
used the Statute of Anne as a model were familiar with this
history. Accordingly, this Court should be especially wary of
relying on Congress' creation of a new system to support the
proposition that Congress unquestionably understood that it had
constitutional authority to extend existing copyrights.
IV
Since the creation of federal patent and copyright protection in
1790, Congress has passed a variety of legislation, both providing
specific relief for individual authors and inventors as well as
changing the general statutes conferring patent and copyright
privileges. Some of the changes did indeed, as the majority
describes, extend existing protections retroactively. Other
changes, however, did not do so. A more complete and comprehensive
look at the history of congressional action under the
Copyright/Patent Clause demonstrates that history, in this case,
does not provide the "'volume of logic,'"
ante, at 200,
necessary to sustain the Sonny Bono Act's constitutionality.
Congress, aside from changing the process of applying for a
patent in the 1793 Patent Act, did not significantly alter the
basic patent and copyright systems for the next 40 years. During
this time, however, Congress did consider many private bills.
Respondent seeks support from "Congress's historical practice of
using its Copyright and Patent Clause authority to extend the terms
of individual patents and copyrights." Brief for Respondent 13.
Carefully read,
9"A LETTER
to a MEMBER
of Parliament concerning
the Bill now depending ... for making more effectual an Act in the
8th Year of the Reign of Queen Anne, entituled, An Act for the
Encouragement of Learning, by ... Vesting the Copies of Printed
Books in the Authors or Purchasers." Document reproduced in
Goldsmiths'-Kress Library of Economic Literature, Segment I:
Printed Books Through 1800, Microfilm No. 7300 (reel 460).
234
however, these private bills do not support respondent's
historical gloss, but rather significantly undermine the historical
claim.
The first example relied upon by respondent, the extension of
Oliver Evans' patent in 1808, ch. 13, 6 Stat. 70, demonstrates the
pitfalls of relying on an incomplete historical analysis. Evans, an
inventor who had developed several improvements in milling flour,
received the third federal patent on January 7, 1791. See Federico,
Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590
(1945). Under the 14-year term provided by the 1790 Patent Act,
this patent was to expire on January 7, 1805. Claiming that 14
years had not provided him a sufficient time to realize income from
his invention and that the net profits were spent developing
improvements on the steam engine, Evans first sought an extension
of his patent in December 1804.
Id., at 598; 14 Annals of
Congo 1002 (1805). Unsuccessful in 1804, he tried again in 1805,
and yet again in 1806, to persuade Congress to pass his private
bill. Undaunted, Evans tried one last time to revive his expired
patent after receiving an adverse judgment in an infringement
action. See
Evans v.
Chambers, 8 F. Cas. 837 (No.
4,555)
(CC Pa. 1807). This time, his effort at private
legislation was successful, and Congress passed a bill extending
his patent for 14 years. See An Act for the relief of Oliver Evans,
6 Stat. 70. This legislation, passed January 21, 1808, restored a
patent monopoly for an invention that had been in the public domain
for over four years. As such, this Act unquestionably exceeded
Congress' authority under the Copyright/Patent Clause: "The
Congress in the exercise of the patent power may not overreach the
restraints imposed by the stated constitutional purpose ....
Congress may not authorize the issuance of patents whose effects
are to remove existent knowledge from the public domain, or to
restrict free access to materials already available." Graham,
383 U. S., at 5-6 (emphasis added).
235
This extension of patent protection to an expired patent was not
an isolated incident. Congress passed private bills either directly
extending patents or allowing otherwise untimely applicants to
apply for patent extensions for approximately 75 patents between
1790 and 1875. Of these 75 patents, at least 56 had already fallen
into the public domain.10 The fact that this repeated practice was
patently unconstitutional completely undermines the majority's
reliance on this history as "significant."
Ante, at 201.
Copyright legislation has a similar history. The federal
Copyright Act was first amended in 1831. That amendment, like later
amendments, not only authorized a longer term for new works, but
also extended the terms of unexpired copyrights. Respondent argues
that that historical practice effectively establishes the
constitutionality of retroactive extensions of unexpired
copyrights. Of course, the practice buttressess the presumption of
validity that attaches to every Act of Congress. But, as our
decision in
INS v.
Chadha, 462 U. S. 919 (1983),
demonstrates, the fact that Congress has repeatedly acted on a
mistaken interpretation of the Constitution does not qualify our
duty to invalidate an unconstitutional practice when it is finally
challenged in an appropriate case. As Justice White pointed out in
his dissent in
Chadha, that case sounded the "death knell
for nearly 200 other statutory provisions" in which Congress had
exercised a "'legislative veto.'"
Id., at 967. Regardless of
the effect of unconstitutional enactments of Congress, the scope of
"'the constitutional power of Congress ... is ultimately a
10 See,
e. g., ch. 74, 6 Stat. 458 (patent had expired
for three months); ch. 113, 6 Stat. 467 (patent had expired for
over two years); ch. 213, 6 Stat. 589 (patent had expired for five
months); ch. 158, 9 Stat. 734 (patent had expired for over two
years); ch. 72, 14 Stat. 621 (patent had expired nearly four
years); ch. 175, 15 Stat. 461 (patent had expired for over two
years); ch. 15, 16 Stat. 613 (patent had expired for six years);
ch. 317, 16 Stat. 659 (patent had expired for nearly four years);
ch. 439, 17 Stat. 689 (patent had expired for over two years).
236
judicial rather than a legislative question, and can be settled
finally only by this Court.'"
United States v.
Morrison,
529 U. S. 598, 614 (2000) (quoting
Heart of Atlanta Motel,
Inc. v.
United States, 379 U. S. 241, 273 (1964)
(Black, J., concurring)). For, as this Court has long recognized,
"[i]t is obviously correct that no one acquires a vested or
protected right in violation of the Constitution by long use, even
when that span of time covers our entire national existence."
Walz v.
Tax Comm'n of City of New York, 397 U. S. 664, 678
(1970).
It would be particularly unwise to attach constitutional
significance to the 1831 amendment because of the very different
legal landscape against which it was enacted. Congress based its
authority to pass the amendment on grounds shortly thereafter
declared improper by the Court. The Judiciary Committee Report
prepared for the House of Representatives asserted that "an author
has an exclusive and perpetual right, in preference to any other,
to the fruits of his labor." 7 Congo Deb., App., p. cxx (1831). The
floor debate echoed this same sentiment. See,
e. g., id., at
424 (statement of Mr. Verplanck (rejecting the idea that copyright
involved "an implied contract existing between an author and the
public" for "[t]here was no contract; the work of an author was the
result of his own labor" and copyright was "merely a legal
provision for the protection of a natural right")). This
sweat-of-the-brow view of copyright, however, was emphatically
rejected by this Court in 1834 in
Wheaton v.
Peters,
8 Pet., at 661 ("Congress, then, by this act, instead of
sanctioning an existing right, as contended for, created it"). No
presumption of validity should attach to a statutory enactment that
relied on a shortly thereafter discredited interpretation of the
basis for congressional power.ll
11 In the period before our decision in
Wheaton, the
pre-emptive effect of the Patent/Copyright Clause was also a matter
of serious debate within the legal profession. Indeed, in their
argument in this Court in
Gibbons v. Ogden, 9 Wheat., at
44-61, 141-157, the defenders of New York's grant of a 30-year
monopoly on the passenger trade between New Jersey and
237
In 1861, Congress amended the term of patents, from a 14-year
term plus opportunity for 7-year extension to a flat 17 years with
no extension permitted. Act of Mar. 2, 1861, ch. 88, § 16, 12 Stat.
249. This change was not retroactive, but rather only applied to
"all patents hereafter granted."
Ibid. To be sure, Congress,
at many times in its history, has retroactively extended the terms
of existing copyrights and patents. This history, however, reveals
a much more heterogeneous practice than respondent contends. It is
replete with actions that were unquestionably unconstitutional.
Though relevant, the history is not dispositive of the
constitutionality of the Sonny Bono Act.
The general presumption that historic practice illuminates the
constitutionality of congressional action is not controlling in
this case. That presumption is strongest when the earliest acts of
Congress are considered, for the overlap of identity between those
who created the Constitution and those who first constituted
Congress provides "contemporaneous and weighty evidence" of the
Constitution's "true meaning."
Wisconsin v.
Pelican Ins.
Co., 127 U. S.
265, 297 (1888). But that strong presumption does not attach to
congressional action in 1831, because no member of the 1831
Congress had been a delegate to the framing convention 44 years
earlier.
Moreover, judicial opinions relied upon by the majority
interpreting early legislative enactments have either been
implicitly overruled or do not support the proposition claimed.
Graham flatly contradicts the cases relied on by the
majority and respondent for support that "renewed or extended
terms
Manhattan argued that the Clause actually should be interpreted
as confirming the State's authority to grant monopoly privileges
that supplemented any federal grant. That argument is, of course,
flatly inconsistent with our recent unanimous decision in
Bonito
Boats, Inc. v.
Thunder Craft Boats, Inc., 489 U. S. 141 (1989).
Although Attorney General Wirt had urged the Court to endorse our
present interpretation of the Clause, its implicit limitations were
unsettled when the 1831 Copyright Act was passed.
238
were upheld in the early days."
Ante, at 202.12
Evans v.
Jordan, 8 F. Cas. 872, 874 (No. 4,564)
(CC Va. 1813) (Marshall, J.);
Evans v.
Robinson, 8 F. Cas. 886, 888 (No. 4,571)
(CC Md.
1813); and
Blanchard v.
Sprague, 3 F. Cas. 648, 650
(No. 1,518) (CC Mass. 1839) (Story, J.), all held that private
bills passed by Congress extending previously expired patents were
valid.
Evans v.
Jordan and
Evans v.
Robinson both considered Oliver Evans' private bill
discussed above while
Blanchard involved ch. 213, 6 Stat.
589, which extended Thomas Blanchard's patent after it had been in
the public domain for five months. Irrespective of what circuit
courts held "in the early days,"
ante, at 202, such holdings
have been implicitly overruled by
Graham and, therefore,
provide no support for respondent in the present constitutional
inquiry.
The majority's reliance on the other patent case it cites is
similarly misplaced. Contrary to the suggestion in the Court's
opinion,
McClurg v.
Kingsland, 1 How. 202 (1843), did
not involve the "legislative expansion" of an existing patent.
Ante, at 202. The question in that case was whether the
former employer of the inventor, one James Harley, could be held
liable as an infringer for continuing to use the process that
Harley had invented in 1834 when he was in its employ. The Court
first held that the employer's use of the process before the patent
issued was not a public
12 It is true, as the majority points out,
ante, at 202,
n. 7, that
Graham did not expressly overrule those earlier
cases because
Graham did not address the issue whether
Congress could revive expired patents. That observation does not
even arguably justify reliance on a set of old circuit court cases
to support a proposition that is inconsistent with our present
understanding of the limits imposed by the Copyright/Patent Clause.
After all, a unanimous Court recently endorsed the precise analysis
that the majority now seeks to characterize as "wishful thinking."
Ante, at 202, n. 7. See
Bonito Boats, 489 U. S., at
146 ("Congress may not create patent monopolies of unlimited
duration, nor may it 'authorize the issuance of patents whose
effects are to remove existent knowledge from the public domain, or
to restrict free access to materials already available'" (quoting
Graham, 383 U. S., at 6)).
239
use that would invalidate the patent, even if it might have had
that effect prior to the amendment of the patent statute in 1836. 1
How., at 206-208. The Court then disposed of the case on the ground
that a statute enacted in 1839 protected the alleged infringer's
right to continue to use the process after the patent issued.
Id., at 209-211. Our opinion said nothing about the power of
Congress to extend the life of an issued patent. It did note that
Congress has plenary power to legislate on the subject of patents
provided "that they do not take away the rights of property in
existing patents."
Id., at 206. The fact that Congress
cannot change the bargain between the public and the patentee in a
way that disadvantages the patentee is, of course, fully consistent
with the view that it cannot enlarge the patent monopoly to the
detriment of the public after a patent has issued.
The history of retroactive extensions of existing and expired
copyrights and patents, though relevant, is not conclusive of the
constitutionality of the Sonny Bono Act. The fact that the Court
has not previously passed upon the constitutionality of retroactive
copyright extensions does not insulate the present extension from
constitutional challenge.
V
Respondent also argues that the Act promotes the useful arts by
providing incentives to restore old movies. For at least three
reasons, the interest in preserving perishable copies of old
copyrighted films does not justify a wholesale extension of
existing copyrights. First, such restoration and preservation will
not even arguably promote any new works by authors or inventors.
And, of course, any original expression in the restoration and
preservation of movies will receive new copyright protectionY
Second, however strong
13 Indeed, the Lodging of the Motion Picture Association of
America, Inc., as
Amicus Curiae illustrates the significant
creative work involved in releasing these classics. The Casablanca
Digital Video Disc (DVD) con-
240
the justification for preserving such works may be, that
justification applies equally to works whose copyrights have
already expired. Yet no one seriously contends that the
Copyright/Patent Clause would authorize the grant of monopoly
privileges for works already in the public domain solely to
encourage their restoration. Finally, even if this concern with
aging movies would permit congressional protection, the remedy
offered-a blanket extension of all copyrights-simply bears no
relationship to the alleged harm.
VI
Finally, respondent relies on concerns of equity to justify the
retroactive extension. If Congress concludes that a longer period
of exclusivity is necessary in order to provide an adequate
incentive to authors to produce new works, respondent seems to
believe that simple fairness requires that the same lengthened
period be provided to authors whose works have already been
completed and copyrighted. This is a classic non sequitur. The
reason for increasing the inducement to create something new simply
does not apply to an already-created work. To the contrary, the
equity argument actually provides strong support for petitioners.
Members of the public were entitled to rely on a promised access to
copyrighted or patented works at the expiration of the terms
specified when the exclusive privileges were granted. On the other
hand, authors will receive the full benefit of the exclusive terms
that were promised as an inducement to their creativity, and have
no equitable claim to increased compensation for doing nothing
more.
tains a "documentary
You Must Remember This, hosted by
Lauren Bacall and featuring recently unearthed outtakes" and an
"[a]ll-new introduction by Lauren Bacall." Disc cover text.
Similarly, the Citizen Kane DVD includes "[tJwo feature-length
audio commentaries: one by film critic Roger Ebert and the other by
director/Welles biographer Peter Bogdanovich" and a "gallery of
storyboards, rare photos, alternate ad campaigns, studio
correspondence, call sheets and other memorabilia" in addition to a
2-hour documentary. Disc cover text.
241
One must indulge in two untenable assumptions to find support in
the equitable argument offered by respondentthat the public
interest in free access to copyrighted works is entirely worthless
and that authors, as a class, should receive a windfall solely
based on completed creative activity. Indeed, Congress has
apparently indulged in those assumptions for under the series of
extensions to copyrights, with the exception of works which
required renewal and which were not renewed, no copyrighted work
created in the past 80 years has entered the public domain or will
do so until 2019. But as our cases repeatedly and consistently
emphasize, ultimate public access is the overriding purpose of the
constitutional provision. See,
e. g.,
Sony Corp., 464
U. S., at
429. Ex post facto extensions of existing
copyrights, unsupported by any consideration of the public
interest, frustrate the central purpose of the Clause.
VII
The express grant of a perpetual copyright would unquestionably
violate the textual requirement that the authors' exclusive rights
be only "for limited Times." Whether the extraordinary length of
the grants authorized by the 1998 Act are invalid because they are
the functional equivalent of perpetual copyrights is a question
that need not be answered in this case because the question
presented by the certiorari petition merely challenges Congress'
power to extend retroactively the terms of existing copyrights.
Accordingly, there is no need to determine whether the deference
that is normally given to congressional policy judgments may save
from judicial review its decision respecting the appropriate length
of the term.14 It is important to note, however, that
14 Similarly, the validity of earlier retroactive extensions of
copyright protection is not at issue in this case. To decide the
question now presented, we need not consider whether the reliance
and expectation interests that have been established by prior
extensions passed years ago would alter the result. Cf.
Heckler v.
Mathews, 465 U. S. 728, 746
(1984)
242
a categorical rule prohibiting retroactive extensions would
effectively preclude perpetual copyrights. More importantly, as the
House of Lords recognized when it refused to amend the Statute of
Anne in 1735, unless the Clause is construed to embody such a
categorical rule, Congress may extend existing monopoly privileges
ad infinitum under the majority's analysis.
By failing to protect the public interest in free access to the
products of inventive and artistic genius-indeed, by virtually
ignoring the central purpose of the Copyright/Patent Clause-the
Court has quitclaimed to Congress its principal responsibility in
this area of the law. Fairly read, the Court has stated that
Congress' actions under the Copyright/ Patent Clause are, for all
intents and purposes, judicially unreviewable. That result cannot
be squared with the basic tenets of our constitutional structure.
It is not hyperbole to recall the trenchant words of Chief Justice
John Marshall:
"It is emphatically the province and duty of the judicial
department to say what the law is."
Marbury v.
Madison, 1 Cranch 137, 177 (1803). We should discharge that
responsibility as we did in
Chadha.
I respectfully dissent.
JUSTICE BREYER, dissenting.
The Constitution's Copyright Clause grants Congress the power to
"promote the
Progress of Science ... by securing for
limited Times to
Authors ... the exclusive Right to
their respective Writings." Art. I, § 8, cl. 8 (emphasis added).
The statute before us, the 1998 Sonny Bono Copyright Term Extension
Act, extends the term of most existing copyrights
("We have recognized, in a number of contexts, the legitimacy of
protecting reasonable reliance on prior law even when that requires
allowing an unconstitutional statute to remain in effect for a
limited period of time"). Those interests are not at issue now,
because the act under review in this case was passed only four
years ago and has been under challenge in court since shortly after
its enactment.
243
to 95 years and that of many new copyrights to 70 years after
the author's death. The economic effect of this 20-year
extension-the longest blanket extension since the Nation's
founding-is to make the copyright term not limited, but virtually
perpetual. Its primary legal effect is to grant the extended term
not to authors, but to their heirs, estates, or corporate
successors. And most importantly, its practical effect is not to
promote, but to inhibit, the progress of "Science"-by which word
the Framers meant learning or knowledge, E. Walterscheid, The
Nature of the Intellectual Property Clause: A Study in Historical
Perspective 125-126 (2002).
The majority believes these conclusions rest upon practical
judgments that at most suggest the statute is unwise, not that it
is unconstitutional. Legal distinctions, however, are often matters
of degree.
Panhandle Oil Co. v.
Mississippi ex rel.
Knox, 277 U. S.
218, 223 (1928) (Holmes, J., dissenting), overruled in part by
Alabama v.
King &
Boozer, 314 U. S. 1, 8-9 (1941);
accord,
Walz v.
Tax Comm'n of City of New York,
397 U. S. 664,
678-679 (1970). And in this case the failings of degree are so
serious that they amount to failings of constitutional kind.
Although the Copyright Clause grants broad legislative power to
Congress, that grant has limits. And in my view this statute falls
outside them.
I
The "monopoly privileges" that the Copyright Clause confers "are
neither unlimited nor primarily designed to provide a special
private benefit."
Sony Corp. of America v.
Universal City
Studios, Inc., 464 U. S. 417, 429
(1984); cf.
Graham v.
John Deere Co. of Kansas City,
383 U. S. 1, 5
(1966). This Court has made clear that the Clause's limitations are
judicially enforceable.
E. g., Trade-Mark Cases, 100 U. S. 82, 93-94
(1879). And, in assessing this statute for that purpose, I would
take into account the fact that the Constitution is a single
document, that it contains both a
244
Copyright Clause and a First Amendment, and that the two are
related.
The Copyright Clause and the First Amendment seek related
objectives-the creation and dissemination of information. When
working in tandem, these provisions mutually reinforce each other,
the first serving as an "engine of free expression,"
Harper
&
Row, Publishers, Inc. v.
Nation Enterprises,
471 U. S. 539,
558 (1985), the second assuring that government throws up no
obstacle to its dissemination. At the same time, a particular
statute that exceeds proper Copyright Clause bounds may set Clause
and Amendment at cross-purposes, thereby depriving the public of
the speechrelated benefits that the Founders, through both, have
promised.
Consequently, I would review plausible claims that a copyright
statute seriously, and unjustifiably, restricts the dissemination
of speech somewhat more carefully than reference to this Court's
traditional Copyright Clause jurisprudence might suggest, cf.
ante, at 204-205, and n. 10. There is no need in this case
to characterize that review as a search for" 'congruence and
proportionality,'"
ante, at 218, or as some other variation
of what this Court has called "intermediate scrutiny,"
e. g.,
San Francisco Arts &
Athletics, Inc. v.
United
States Olympic Comm., 483 U. S. 522, 536-537
(1987) (applying intermediate scrutiny to a variant of normal
trademark protection). Cf.
Nixon v.
Shrink Missouri
Government PAC, 528 U. S. 377, 402-403
(2000) (BREYER, J., concurring) (test of proportionality between
burdens and benefits "where a law significantly implicates
competing constitutionally protected interests"). Rather, it is
necessary only to recognize that this statute involves not pure
economic regulation, but regulation of expression, and what may
count as rational where economic regulation is at issue is not
necessarily rational where we focus on expression-in a Nation
constitutionally dedicated to the free dissemination of speech,
information, learning, and culture. In this sense
245
only, and where line-drawing among constitutional interests is
at issue, I would look harder than does the majority at the
statute's rationality-though less hard than precedent might
justify, see,
e. g., Cleburne v.
Cleburne Living Center,
Inc., 473 U. S.
432, 446-450 (1985);
Plyler v.
Doe, 457 U. S. 202, 223-224
(1982);
Department of Agriculture v.
Moreno, 413 U. S. 528, 534-538
(1973).
Thus, I would find that the statute lacks the constitutionally
necessary rational support (1) if the significant benefits that it
bestows are private, not public; (2) if it threatens seriously to
undermine the expressive values that the Copyright Clause embodies;
and (3) if it cannot find justification in any significant
Clause-related objective. Where, after examination of the statute,
it becomes difficult, if not impossible, even to dispute these
characterizations, Congress' "choice is clearly wrong."
Helvering v.
Davis, 301 U. S. 619, 640
(1937).
II A
Because we must examine the relevant statutory effects in light
of the Copyright Clause's own purposes, we should begin by
reviewing the basic objectives of that Clause. The Clause
authorizes a "tax on readers for the purpose of giving a bounty to
writers." 56 ParI. Deb. (3d Ser.) (1841) 341, 350 (Lord Macaulay).
Why? What constitutional purposes does the "bounty" serve?
The Constitution itself describes the basic Clause objective as
one of "promot[ing] the Progress of Science," i.
e.,
knowledge and learning. The Clause exists not to "provide a special
private benefit,"
Sony, supra, at 429, but "to stimulate
artistic creativity for the general public good,"
Twentieth
Century Music Corp. v.
Aiken, 422 U. S. 151, 156
(1975). It does so by "motivat[ing] the creative activity of
authors" through "the provision of a special reward."
Sony,
supra, at 429. The "reward" is a means, not an end. And that
is
246
why the copyright term is limited. It is limited so that its
beneficiaries-the public-"will not be permanently deprived of the
fruits of an artist's labors."
Stewart v.
Abend,
495 U. S. 207,
228 (1990).
That is how the Court previously has described the Clause's
objectives. See also
Mazer v.
Stein, 347 U. S. 201, 219 (1954)
("[C]opyright law ... makes reward to the owner a secondary
consideration" (internal quotation marks omitted));
Sony,
464 U. S., at 429 ("[L]imited grant" is "intended ... to allow the
public access to the products of [authors'] genius after the
limited period of exclusive control has expired");
Harper
&
Row, supra, at 545 (Copyright is "intended to increase
and not to impede the harvest of knowledge"). But cf.
ante,
at 212, n. 18. And, in doing so, the Court simply has reiterated
the views of the Founders.
Madison, like Jefferson and others in the founding generation,
warned against the dangers of monopolies. See,
e. g.,
Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments.
in J. Madison, Writings 756 (J. Rakove ed. 1999) (hereinafter
Madison on Monopolies); Letter from Thomas Jefferson to James
Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 443 (J.
Boyd ed. 1956) (hereinafter Papers of Thomas Jefferson) (arguing
against even copyright monopolies); 2 Annals of Congo 1917 (1791)
(statement of Rep. Jackson in the First Congress, Feb. 1791) ("What
was it drove our forefathers to this country? Was it not the
ecclesiastical corporations and perpetual monopolies of England and
Scotland?"). Madison noted that the Constitution had "limited them
to two cases, the authors of Books, and of useful inventions."
Madison on Monopolies 756. He thought that in those two cases
monopoly is justified because it amounts to "compensation for" an
actual community "benefit" and because the monopoly is
"temporary"the term originally being 14 years (once renewable).
Ibid. Madison concluded that "under that limitation a
sufficient recompence and encouragement may be given."
Ibid.
But
247
he warned in general that monopolies must be "guarded with
strictness agst abuse."
Ibid.
Many Members of the Legislative Branch have expressed themselves
similarly. Those who wrote the House Report on the landmark
Copyright Act of 1909, for example, said that copyright was not
designed "primarily" to "benefit" the "author" or "any particular
class of citizens, however worthy." H. R. Rep. No. 2222, 60th
Cong., 2d Sess., 6-7 (1909). Rather, under the Constitution,
copyright was designed "primarily for the benefit of the public,"
for "the benefit of the great body of people, in that it will
stimulate writing and invention."
Id., at 7. And were a
copyright statute not "believed, in fact, to accomplish" the basic
constitutional objective of advancing learning, that statute "would
be beyond the power of Congress" to enact.
Id., at 6-7.
Similarly, those who wrote the House Report on legislation that
implemented the Berne Convention for the Protection of Literary and
Artistic Works said that "[t]he constitutional purpose of copyright
is to facilitate the flow of ideas in the interest of learning." H.
R. Rep. No. 100-609, p. 22 (1988) (internal quotation marks
omitted). They added:
"Under the U. S. Constitution, the primary objective of
copyright law is not to reward the author, but rather to secure for
the public the benefits derived from the authors' labors. By giving
authors an incentive to create, the public benefits in two ways:
when the original expression is created and ... when the limited
term ... expires and the creation is added to the public domain."
Id., at 17.
For present purposes, then, we should take the following as well
established: that copyright statutes must serve public, not
private, ends; that they must seek "to promote the Progress" of
knowledge and learning; and that they must do so both by creating
incentives for authors to produce and by removing the related
restrictions on dissemination after
248
expiration of a copyright's "limited Tim[e]"-a time that (like
"a limited monarch") is "restrain[ed]" and "circumscribe[d]," "not
[left] at large," 2 S. Johnson, A Dictionary of the English
Language 1151 (4th rev. ed. 1773). I would examine the statute's
effects in light of these wellestablished constitutional
purposes.
B
This statute, like virtually every copyright statute, imposes
upon the public certain expression-related costs in the form of (1)
royalties that may be higher than necessary to evoke creation of
the relevant work, and (2) a requirement that one seeking to
reproduce a copyrighted work must obtain the copyright holder's
permission. The first of these costs translates into higher prices
that will potentially restrict a work's dissemination. The second
means search costs that themselves may prevent reproduction even
where the author has no objection. Although these costs are, in a
sense, inevitable concomitants of copyright protection, there are
special reasons for thinking them especially serious here.
First, the present statute primarily benefits the holders of
existing copyrights, i.
e., copyrights on works already
created. And a Congressional Research Service (CRS) study prepared
for Congress indicates that the added royaltyrelated sum that the
law will transfer to existing copyright holders is large. E.
Rappaport, CRS Report for Congress, Copyright Term Extension:
Estimating the Economic Values (1998) (hereinafter CRS Report). In
conjunction with official figures on copyright renewals, the CRS
Report indicates that only about 2% of copyrights between 55 and 75
years old retain commercial value-i.
e., still generate
royalties after that time. Brief for Petitioners 7 (estimate,
uncontested by respondent, based on data from the CRS, Census
Bureau, and Library of Congress). But books, songs, and movies of
that vintage still earn about $400 million per year in royalties.
CRS Report 8, 12, 15. Hence, (despite declin-
249
ing consumer interest in any given work over time) one might
conservatively estimate that 20 extra years of copyright protection
will mean the transfer of several billion extra royalty dollars to
holders of existing copyrights-copyrights that, together, already
will have earned many billions of dollars in royalty "reward." See
id., at 16.
The extra royalty payments will not come from thin air.
Rather, they ultimately come from those who wish to read or see
or hear those classic books or films or recordings that have
survived. Even the $500,000 that United Airlines has had to pay for
the right to play George Gershwin's 1924 classic Rhapsody in Blue
represents a cost of doing business, potentially reflected in the
ticket prices of those who fly. See Ganzel, Copyright or Copywrong?
39 Training 36, 42 (Dec. 2002). Further, the likely amounts of
extra royalty payments are large enough to suggest that
unnecessarily high prices will unnecessarily restrict distribution
of classic works (or lead to disobedience of the law)-not just in
theory but in practice. Cf. CRS Report 3 ("[N]ew, cheaper editions
can be expected when works come out of copyright"); Brief for
College Art Association et al. as
Amici Curiae 24 (One year
after expiration of copyright on Willa Cather's My Antonia, seven
new editions appeared at prices ranging from $2 to $24); Ganzel,
supra, at 40-41, 44 (describing later abandoned plans to
charge individual Girl Scout camps $257 to $1,439 annually for a
license to sing songs such as God Bless America around a
campfire).
A second, equally important, cause for concern arises out of the
fact that copyright extension imposes a "permissions"
requirement-not only upon potential users of "classic" works that
still retain commercial value, but also upon potential users of
any other work still in copyright. Again using CRS
estimates, one can estimate that, by 2018, the number of such works
75 years of age or older will be about 350,000. See Brief for
Petitioners 7. Because the Copyright Act of 1976 abolished the
requirement that an owner must renew a
250
copyright, such still-in-copyright works (of little or no
commercial value) will eventually number in the millions. See Pub.
L. 94-553, §§ 302-304,90 Stat. 2572-2576; U. S. Dept. of Commerce,
Bureau of Census, Statistical History of the United States: From
Colonial Times to the Present 956 (1976) (hereinafter Statistical
History).
The potential users of such works include not only movie buffs
and aging jazz fans, but also historians, scholars, teachers,
writers, artists, database operators, and researchers of all
kinds-those who want to make the past accessible for their own use
or for that of others. The permissions requirement can inhibit
their ability to accomplish that task. Indeed, in an age where
computer-accessible databases promise to facilitate research and
learning, the permissions requirement can stand as a significant
obstacle to realization of that technological hope.
The reason is that the permissions requirement can inhibit or
prevent the use of old works (particularly those without commercial
value): (1) because it may prove expensive to track down or to
contract with the copyright holder, (2) because the holder may
prove impossible to find, or (3) because the holder when found may
deny permission either outright or through misinformed efforts to
bargain. The CRS, for example, has found that the cost of seeking
permission "can be prohibitive." CRS Report 4. And
amici,
along with petitioners, provide examples of the kinds of
significant harm at issue.
Thus, the American Association of Law Libraries points out that
the clearance process associated with creating an electronic
archive, Documenting the American South, "consumed approximately a
dozen man-hours"
per work. Brief for American Association of
Law Libraries et al. as
Amici Curiae 20. The College Art
Association says that the costs of obtaining permission for use of
single images, short excerpts, and other short works can become
prohibitively high; it describes the abandonment of efforts to
include,
e. g., cam-
251
paign songs, film excerpts, and documents exposing "horrors of
the chain gang" in historical works or archives; and it points to
examples in which copyright holders in effect have used their
control of copyright to try to control the content of historical or
cultural works. Brief for College Art Association et al. as
Amici Curiae 7-13. The National Writers Union provides
similar examples. Brief for National Writers Union et al. as
Amici Curiae 25-27. Petitioners point to music fees that may
prevent youth or community orchestras, or church choirs, from
performing early 20th-century music. Brief for Petitioners 3-5; see
also App. 16-17 (Copyright extension caused abandonment of plans to
sell sheet music of Maurice Ravel's Alborada Del Gracioso).
Amici for petitioners describe how electronic databases tend
to avoid adding to their collections works whose copyright holders
may prove difficult to contact, see,
e. g., Arms, Getting
the Picture: Observations from the Library of Congress on Providing
Online Access to Pictorial Images, 48 Library Trends 379, 405
(1999) (describing how this tendency applies to the Library of
Congress' own digital archives).
As I have said, to some extent costs of this kind accompany any
copyright law, regardless of the length of the copyright term. But
to extend that term, preventing works from the 1920's and 1930's
from falling into the public domain, will dramatically increase the
size of the costs just asperversely-the likely benefits from
protection diminish. See
infra, at 254-256. The older the
work, the less likely it retains commercial value, and the harder
it will likely prove to find the current copyright holder. The
older the work, the more likely it will prove useful to the
historian, artist, or teacher. The older the work, the less likely
it is that a sense of authors' rights can justify a copyright
holder's decision not to permit reproduction, for the more likely
it is that the copyright holder making the decision is not the
work's creator, but, say, a corporation or a great-grandchild whom
the work's creator never knew. Similarly, the costs of
obtaining
252
permission, now perhaps ranging in the millions of dollars, will
multiply as the number of holders of affected copyrights increases
from several hundred thousand to several million. See
supra,
at 249-250. The costs to the users of nonprofit databases, now
numbering in the low millions, will multiply as the use of those
computer-assisted databases becomes more prevalent. See,
e.
g., Brief for Internet Archive et al. as
Amici Curiae 2, 21,
and n. 37 (describing nonprofit Project Gutenberg). And the
qualitative costs to education, learning, and research will
multiply as our children become ever more dependent for the content
of their knowledge upon computer-accessible databases-thereby
condemning that which is not so accessible, say, the cultural
content of early 20th-century history, to a kind of intellectual
purgatory from which it will not easily emerge.
The majority finds my description of these permissionsrelated
harms overstated in light of Congress' inclusion of a statutory
exemption, which, during the last 20 years of a copyright term,
exempts "facsimile or digital" reproduction by a "library or
archives" "for purposes of preservation, scholarship, or research,"
17 U. S. C. § 108(h).
Ante, at 220. This exemption, however,
applies only where the copy is made for the special listed
purposes; it simply permits a library (not any other subsequent
users) to make "a copy" for those purposes; it covers only
"published" works not "subject to normal commercial exploitation"
and not obtainable, apparently not even as a used copy, at a
"reasonable price"; and it insists that the library assure itself
through "reasonable investigation" that these conditions have been
met. § 108(h). What database proprietor can rely on so limited an
exemption-particularly when the phrase "reasonable investigation"
is so open-ended and particularly if the database has commercial,
as well as noncommercial, aspects?
The majority also invokes the "fair use" exception, and it notes
that copyright law itself is restricted to protection of a work's
expression, not its substantive content.
Ante, at
253
219-220. N either the exception nor the restriction, however,
would necessarily help those who wish to obtain from electronic
databases material that is not there-say, teachers wishing their
students to see albums of Depression Era photographs, to read the
recorded words of those who actually lived under slavery, or to
contrast, say, Gary Cooper's heroic portrayal of Sergeant York with
filmed reality from the battlefield of Verdun. Such harm, and more,
see
supra, at 248252, will occur despite the 1998 Act's
exemptions and despite the other "First Amendment safeguards" in
which the majority places its trust,
ante, at 219-220.
I should add that the Motion Picture Association of America also
finds my concerns overstated, at least with respect to films,
because the extension will sometimes make it profitable to reissue
old films, saving them from extinction. Brief for Motion Picture
Association of America, Inc., as
Amicus Curiae 14-24. Other
film preservationists note, however, that only a small minority of
the many films, particularly silent films, from the 1920's and
1930's have been preserved. 1 Report of the Librarian of Congress,
Film Preservation 1993, pp. 3-4 (Half of all pre-1950 feature films
and more than 80% of all such pre-1929 films have already been
lost); cf. Brief for Hal Roach Studios et al. as
Amici
Curiae 18 (Out of 1,200 Twenties Era silent films still under
copyright, 63 are now available on digital video disc). They seek
to preserve the remainder. See,
e. g., Brief for Internet
Archive et al. as
Amici Curiae 22 (Nonprofit database
digitized 1,001 public-domain films, releasing them online without
charge); 1 Film Preservation 1993,
supra, at 23 (reporting
well over 200,000 titles held in public archives). And they tell us
that copyright extension will impede preservation by forbidding the
reproduction of films within their own or within other public
collections. Brief for Hal Roach Studios et al. as
Amici
Curiae 10-21; see also Brief for Internet Archive et al. as
Amici Curiae 16-29; Brief for American Association of Law
Libraries et al. as
Amici Curiae 26-27.
254
Because this subsection concerns only costs, not countervailing
benefits, I shall simply note here that, with respect to films as
with respect to other works, extension does cause substantial harm
to efforts to preserve and to disseminate works that were created
long ago. And I shall turn to the second half of the equation:
Could Congress reasonably have found that the extension's
toll-related and permissionsrelated harms are justified by
extension's countervailing preservationist incentives or in other
ways?
C
What copyright-related benefits might justify the statute's
extension of copyright protection? First, no one could reasonably
conclude that copyright's traditional economic rationale applies
here. The extension will not act as an economic spur encouraging
authors to create new works. See
Mazer, 347 U. S., at 219
(The "economic philosophy" of the Copyright Clause is to "advance
public welfare" by "encourageing] individual effort" through
"personal gain"); see also
ante, at 212, n. 18 ("[C]opyright
law serves public ends by providing individuals with an incentive
to pursue private ones"). No potential author can reasonably
believe that he has more than a tiny chance of writing a classic
that will survive commercially long enough for the copyright
extension to matter. After all, if, after 55 to 75 years, only 2%
of all copyrights retain commercial value, the percentage surviving
after 75 years or more (a typical pre-extension copyright
term)-must be far smaller. See
supra, at 248; CRS Report 7
(estimating that, even after copyright renewal, about 3.8% of
copyrighted books go out of print each year). And any remaining
monetary incentive is diminished dramatically by the fact that the
relevant royalties will not arrive until 75 years or more into the
future, when, not the author, but distant heirs, or shareholders in
a successor corporation, will receive them. U sing assumptions
about the time value of money provided us by a group of economists
(including five
255
Nobel prize winners), Brief for George A. Akerlof et al. as
Amici Curiae 5-7, it seems fair to say that, for example, a
1 % likelihood of earning $100 annually for 20 years, starting
75 years into the future, is worth less than seven cents
today. See id., App. 3a; see also CRS Report 5. See generally
Appendix, Part A,
infra.
What potential Shakespeare, Wharton, or Hemingway would be moved
by such a sum? What monetarily motivated Melville would not realize
that he could do better for his grandchildren by putting a few
dollars into an interestbearing bank account? The Court itself
finds no evidence to the contrary. It refers to testimony before
Congress (1) that the copyright system's incentives encourage
creation, and (2) (referring to Noah Webster) that income earned
from one work can help support an artist who" 'continue[s] to
create.'"
Ante, at 208, n. 15. But the first of these
amounts to no more than a set of undeniably true propositions about
the value of incentives
in general. And the applicability of
the second to
this Act is mysterious. How will extension
help today's Noah Webster create new works 50 years after his
death? Or is that hypothetical Webster supposed to support himself
with the extension's present discounted value, i.
e., a few
pennies? Or (to change the metaphor) is the argument that Dumas
fils would have written more books had Dumas
pere's Three
Musketeers earned more royalties?
Regardless, even if this cited testimony were meant more
specifically to tell Congress that somehow, somewhere, some
potential author might be moved by the thought of
greatgrandchildren receiving copyright royalties a century hence,
so might some potential author also be moved by the thought of
royalties being paid for two centuries, five centuries, 1,000
years, " 'til the End of Time." And from a rational economic
perspective the time difference among these periods
makes no
real difference. The present extension will produce a copyright
period of protection that, even under conservative
256
assumptions, is worth more than 99.8% of protection
in
perpetuity (more than 99.99% for a songwriter like Irving
Berlin and a song like Alexander's Ragtime Band). See Appendix,
Part A,
infra. The lack of a practically meaningful
distinction from an author's
ex ante perspective between (a)
the statute's extended terms and (b) an infinite term makes this
latest extension difficult to square with the Constitution's
insistence on "limited Times." Cf. Tr. of Oral Arg. 34 (Solicitor
General's related concession).
I am not certain why the Court considers it relevant in this
respect that "[n]othing ... warrants construction of the [1998
Act's] 20-year term extension as a congressional attempt to evade
or override the 'limited Times' constraint."
Ante, at 209.
Of course Congress did not intend to act unconstitutionally. But it
may have sought to test the Constitution's limits. After all, the
statute was named after a Member of Congress, who, the legislative
history records, "wanted the term of copyright protection to last
forever." 144 Congo Rec. H9952 (daily ed. Oct. 7, 1998) (statement
of Rep. Mary Bono). See also Copyright Term, Film Labeling, and
Film Preservation Legislation: Hearings on H. R. 989 et al. before
the Subcommittee on Courts and Intellectual Property of the House
Judiciary Committee, 104th Cong., 1st Sess., 94 (1995) (hereinafter
House Hearings) (statement of Rep. Sonny Bono) (questioning why
copyrights should ever expire);
ibid. (statement of Rep.
Berman) ("I guess we could ... just make a permanent moratorium on
the expiration of copyrights"); id., at 230 (statement of Rep.
Hoke) ("Why 70 years? Why not forever? Why not 150 years?"); cf.
ibid. (statement of the Register of Copyrights) (In
Copyright Office proceedings, "[t]he Songwriters Guild suggested a
perpetual term"); id., at 234 (statement of Quincy Jones) ("I'm
particularly fascinated with Representative Hoke's statement ....
[W]hy not forever?"); id., at 277 (statement of Quincy Jones) ("If
we can start with 70, add 20, it would be a good start"). And the
statute ended up creating a term so long that (were the vest-
257
ing of 19th-century real property at issue) it would typically
violate the traditional rule against perpetuities. See 10 R.
Powell, Real Property §§ 71.02[2]-[3], p. 71-11 (M. Wolf ed. 2002)
(traditional rule that estate must vest, if at all, within lives in
being plus 21 years); cf. id., § 71.03, at 71-15 (modern statutory
perpetuity term of 90 years, 5 years shorter than 95-year copyright
terms).
In any event, the incentive-related numbers are far too small
for Congress to have concluded rationally, even with respect to new
works, that the extension's economicincentive effect could justify
the serious expression-related harms earlier described. See Part
II-B,
supra. And, of course, in respect to works already
created-the source of many of the harms previously described-the
statute creates no economic incentive at all. See
ante, at 226-227 (STEVENS, J., dissenting).
Second, the Court relies heavily for justification upon
international uniformity of terms.
Ante, at 196, 205-206.
Although it can be helpful to look to international norms and legal
experience in understanding American law, cf.
Printz v.
United States, 521 U. S. 898, 977 (1997)
(BREYER, J., dissenting), in this case the justification based upon
foreign rules is surprisingly weak. Those who claim that
significant copyright-related benefits flow from greater
international uniformity of terms point to the fact that the
nations of the European Union have adopted a system of copyright
terms uniform among themselves. And the extension before this Court
implements a term of life plus 70 years that appears to conform
with the European standard. But how does "uniformity" help to
justify this statute?
Despite appearances, the statute does
not create a
uniform American- European term with respect to the lion's share of
the economically significant works that it
affects-all works
made "for hire" and
all existing works created prior to
1978. See Appendix, Part B,
infra. With respect to those
works the American statute produces an extended term of 95
years
258
while comparable European rights in "for hire" works last for
periods that vary from 50 years to 70 years to life plus 70 years.
Compare 17 U. S. C. §§ 302(c), 304(a)-(b), with Council Directive
93/98/EEC of29 October 1993 Harmonizing the Term of Protection of
Copyright and Certain Related Rights, Arts. 1-3, 1993 OfficialJ.
Eur. Corns. (L 290), pp.11-12 (hereinafter EU Council Directive
93/98). Neither does the statute create uniformity with respect to
anonymous or pseudonymous works. Compare 17 U. S. C. §§ 302(c),
304(a)-(b), with EU Council Directive 93/98, Art. 1, p. 11.
The statute does produce uniformity with respect to copyrights
in new, post-1977 works attributed to natural persons. Compare 17
U. S. C. § 302(a) with EU Council Directive 93/ 98, Art. 1(1), p.
11. But these works constitute only a subset (likely a minority) of
works that retain commercial value after 75 years. See Appendix,
Part B,
infra. And the fact that uniformity comes so late,
if at all, means that bringing American law into conformity with
this particular aspect of European law will neither encourage
creation nor benefit the long-dead author in any other important
way.
What benefit, then, might this partial future uniformity
achieve? The majority refers to "greater incentive for American and
other authors to create and disseminate their work in the United
States," and cites a law review article suggesting a need to
"'avoid competitive disadvantages.'"
Ante, at 206. The
Solicitor General elaborates on this theme, postulating that
because uncorrected disuniformity would permit Europe, not the
United States, to hold out the prospect of protection lasting for
"life plus 70 years" (instead of "life plus 50 years"), a potential
author might decide to publish initially in Europe, delaying
American publication. Brief for Respondent 38. And the statute, by
creating a uniformly longer term, corrects for the disincentive
that this disuniformity might otherwise produce.
That disincentive, however, could not possibly bring about
serious harm of the sort that the Court, the Solicitor Gen-
259
eral, or the law review author fears. For one thing, it is
unclear just who will be hurt and how, should American publication
come second-for the Berne Convention still offers full protection
as long as a second publication is delayed by 30 days. See Berne
Conv. Arts. 3(4), 5(4). For another, few, if any, potential authors
would turn a "where to publish" decision upon this particular
difference in the length of the copyright term. As we have seen,
the present commercial value of any such difference amounts at most
to comparative pennies. See
supra, at 254-256. And a
commercial decision that turned upon such a difference would have
had to have rested previously upon a knife edge so fine as to be
invisible. A rational legislature could not give major weight to an
invisible, likely nonexistent incentive-related effect.
But if there is no incentive-related benefit, what is the
benefit of the future uniformity that the statute only partially
achieves? Unlike the Copyright Act of 1976, this statute does not
constitute part of an American effort to conform to an important
international treaty like the Berne Convention. See H. R. Rep. No.
94-1476, pp. 135-136 (1976) (The 1976 Act's life-plus-50 term was
"required for adherence to the Berne Convention"); S. Rep. No.
94-473, p. 118 (1975) (same). Nor does European acceptance of the
longer term seem to reflect more than special European
institutional considerations, i.
e., the needs of, and the
international politics surrounding, the development of the European
Union. House Hearings 230 (statement of the Register of
Copyrights); id., at 396-398 (statement of J. Reichman). European
and American copyright law have long coexisted despite important
differences, including Europe's traditional respect for authors'
"moral rights" and the absence in Europe of constitutional
restraints that restrict copyrights to "limited Times." See,
e. g., Kwall, Copyright and the Moral Right:
Is an American Marriage Possible? 38 Vand. L. Rev. 1-3 (1985)
(moral rights); House Hearings 187 (testimony of the Register of
Copyrights) ("limited [T]imes").
260
In sum, the partial, future uniformity that the 1998 Act
promises cannot reasonably be said to justify extension of the
copyright term for new works. And concerns with uniformity cannot
possibly justify the extension of the new term to older works, for
the statute there creates no uniformity at all.
Third, several publishers and filmmakers argue that the statute
provides incentives to
those who act as publishers to
republish and to redistribute older copyrighted works. This claim
cannot justify this statute, however, because the rationale is
inconsistent with the basic purpose of the Copyright Clause-as
understood by the Framers and by this Court. The Clause assumes an
initial grant of monopoly, designed primarily to encourage
creation, followed by termination of the monopoly grant in order to
promote dissemination of already-created works. It assumes that it
is the
disappearance of the monopoly grant, not its
perpetuation, that will, on balance, promote the
dissemination of works already in existence. This view of the
Clause does not deny the empirical possibility that grant of a
copyright monopoly to the heirs or successors of a long-dead author
could
on occasion help publishers resurrect the work, say,
of a long-lost Shakespeare. But it does deny Congress the Copyright
Clause power to base its actions primarily upon that empirical
possibility-lest copyright grants become perpetual, lest on balance
they restrict dissemination, lest too often they seek to bestow
benefits that are solely retroactive.
This view of the Clause finds strong support in the writings of
Madison, in the antimonopoly environment in which the Framers wrote
the Clause, and in the history of the Clause's English antecedent,
the Statute of Anne-a statute which sought to break up a
publishers' monopoly by offering, as an alternative, an author's
monopoly of limited duration. See Patterson, Understanding the
Copyright Clause, 47 J. Copyright Soc. 365, 379 (2000) (Statute of
Anne); L. Patterson, Copyright in Historical Perspective 144-147
(1968)
261
(same); Madison on Monopolies 756-757; Papers of Thomas
Jefferson 442-443; The Constitutional Convention and the Formation
of the Union 334, 338 (W. Solberg 2d ed. 1990); see also
supra, at 246-247.
This view finds virtually conclusive support in the Court's own
precedents. See
Sony, 464 U. S., at 429 (The Copyright
Clause is "intended ... to allow the public access ... after the
limited period of exclusive control");
Stewart, 495 U. S.,
at 228 (The copyright term is limited to avoid "permanently
depriv[ing]" the public of "the fruits of an artist's labors"); see
also
supra, at 245-246.
This view also finds textual support in the Copyright Clause's
word "limited." Cf. J. Story, Commentaries on the Constitution §
558, p. 402 (R. Rotunda & J. Nowak eds. 1987) (The Copyright
Clause benefits the public in part because it "admit[s] the people
at large, after a
short interval, to the full possession and
enjoyment of all writings ... without restraint" (emphasis added)).
It finds added textual support in the word "Authors," which is
difficult to reconcile with a rationale that rests entirely upon
incentives given to publishers perhaps long after the death of the
work's creator. Cf.
Feist Publications, Inc. v.
Rural
Telephone Service Co., 499 U. S. 340, 346-347
(1991).
It finds empirical support in sources that underscore the wisdom
of the Framers' judgment. See CRS Report 3 ("[N]ew, cheaper
editions can be expected when works come out of copyright"); see
also Part II-B,
supra. And it draws logical support from the
endlessly self-perpetuating nature of the publishers' claim and the
difficulty of finding any kind of logical stopping place were this
Court to accept such a uniquely publisher-related rationale. (Would
it justify continuing to extend copyrights indefinitely, say, for
those granted to F. Scott Fitzgerald or his lesser known
contemporaries? Would it not, in principle, justify continued
protection of the works of Shakespeare, Melville, Mozart, or
perhaps Salieri, Mozart's currently less popular contemporary?
262
Could it justify yet further extension of the copyright on the
song Happy Birthday to You (melody first published in 1893, song
copyrighted after litigation in 1935),
still in effect and
currently owned by a subsidiary of AOL Time Warner? See Profitable
"Happy Birthday," Times of London, Aug. 5, 2000, p. 6.)
Given this support, it is difficult to accept the conflicting
rationale that the publishers advance, namely, that extension,
rather than limitation, of the grant will, by rewarding publishers
with a form of monopoly, promote, rather than retard, the
dissemination of works already in existence. Indeed, given these
considerations, this rationale seems constitutionally
perverse-unable, constitutionally speaking, to justify the blanket
extension here at issue. Cf.
ante, at 239240 (STEVENS, J.,
dissenting).
Fourth, the statute's legislative history suggests another
possible justification. That history refers frequently to the
financial assistance the statute will bring the entertainment
industry, particularly through the promotion of exports. See,
e. g., S. Rep. No. 104-315, p. 3 (1996) ("The purpose of the
bill is to ensure adequate copyright protection for American works
in foreign nations and the continued economic benefits of a healthy
surplus balance of trade"); 144 Congo Rec., at H9951 (statement of
Rep. Foley) (noting "the importance of this issue to America's
creative community," "[w]hether it is Sony, BMI, Disney," or other
companies). I recognize that Congress has sometimes found that
suppression of competition will help Americans sell abroad-though
it has simultaneously taken care to protect American buyers from
higher domestic prices. See,
e. g., Webb-Pomerene Act
(Export Trade), 40 Stat. 516, as amended, 15 U. S. C. §§ 61-65; see
also IA P. Areeda & H. Hovenkamp, Antitrust Law ~ 251a, pp.
134-137 (2d ed. 2000) (criticizing export cartels). In doing so,
however, Congress has exercised its commerce, not its copyright,
power. I can find nothing in the Copyright Clause that would
authorize Congress to enhance the
263
copyright grant's monopoly power, likely leading to higher
prices both at home and abroad,
solely in order to produce
higher foreign earnings. That objective is not a copyright
objective. Nor, standing alone, is it related to any other
objective more closely tied to the Clause itself. Neither can
higher corporate profits alone justify the grant's enhancement. The
Clause seeks public, not private, benefits.
Finally, the Court mentions as possible justifications
"demographic, economic, and technological changes" -by which the
Court apparently means the facts that today people communicate with
the help of modern technology, live longer, and have children at a
later age.
Ante, at 206-207, and n. 14. The first fact seems
to argue not for, but instead against, extension. See Part II-B,
supra. The second fact seems already corrected for by the
1976 Act's life-plus-50 term, which automatically grows with
lifespans. Cf. Department of Health and Human Services, Centers for
Disease Control and Prevention, Deaths: Final Data for 2000 (2002)
(Table 8) (reporting a 4-year increase in expected lifespan between
1976 and 1998). And the third fact-that adults are having children
later in life-is a makeweight at best, providing no explanation of
why the 1976 Act's term of 50 years after an author's death-a
longer term than was available to authors themselves for most of
our Nation's history-is an insufficient potential bequest. The
weakness of these final rationales simply underscores the
conclusion that emerges from consideration of earlier attempts at
justification: There is no legitimate, serious copyright-related
justification for this statute.
III
The Court is concerned that our holding in this case not inhibit
the broad decisionmaking leeway that the Copyright Clause grants
Congress.
Ante, at 204-205, 208, 222. It is concerned about
the implications of to day's decision for the Copyright Act of
1976-an Act that changed copyright's basic term from 56 years
(assuming renewal) to life of the
264
author plus 50 years,
ante, at 194-195.
Ante, at
222. It is concerned about having to determine just how many years
of copyright is too many-a determination that it fears would
require it to find the "right" constitutional number, a task for
which the Court is not well suited. See
ibid.; but cf.
ante, at 210, n. 17.
I share the Court's initial concern, about intrusion upon the
decisionmaking authority of Congress. See
ante, at 205, n.
10. But I do not believe it intrudes upon that authority to find
the statute unconstitutional on the basis of (1) a legal analysis
of the Copyright Clause's objectives, see
supra, at
245-248,260-263; (2) the total implausibility of any incentive
effect, see
supra, at 254-257; and (3) the statute's
apparent failure to provide significant international uniformity,
see
supra, at 257-260. Nor does it intrude upon
congressional authority to consider rationality in light of the
expressive values underlying the Copyright Clause, related as it is
to the First Amendment, and given the constitutional importance of
correctly drawing the relevant Clause/Amendment boundary.
Supra, at 243-245. We cannot avoid the need to examine the
statute carefully by saying that "Congress has not altered the
traditional contours of copyright protection,"
ante, at 221,
for the sentence points to the question, rather than the answer.
Nor should we avoid that examination here. That degree of judicial
vigilance-at the far outer boundaries of the Clause-is warranted if
we are to avoid the monopolies and consequent restrictions of
expression that the Clause, read consistently with the First
Amendment, seeks to preclude. And that vigilance is all the more
necessary in a new century that will see intellectual property
rights and the forms of expression that underlie them play an ever
more important role in the Nation's economy and the lives of its
citizens.
I do not share the Court's concern that my view of the 1998 Act
could automatically doom the 1976 Act. Unlike the present statute,
the 1976 Act thoroughly revised copyright law and enabled the
United States to join the Berne Conven-
265
tion-an international treaty that requires the 1976 Act's basic
life-plus-50 term as a condition for substantive protections from a
copyright's very inception, Berne Conv. Art. 7(1). Consequently,
the balance of copyright-related harms and benefits there is far
less one sided. The same is true of the 1909 and 1831 Acts, which,
in any event, provided for maximum terms of 56 years or 42 years
while requiring renewal after 28 years, with most copyrighted works
falling into the public domain after that 28-year period, well
before the putative maximum terms had elapsed. See
ante, at
194; Statistical History 956-957. Regardless, the law provides
means to protect those who have reasonably relied upon prior
copyright statutes. See
Heckler v.
Mathews, 465 U. S. 728, 746
(1984). And, in any event, we are not here considering, and we need
not consider, the constitutionality of other copyright
statutes.
Neither do I share the Court's aversion to line-drawing in this
case. Even if it is difficult to draw a single clear bright line,
the Court could easily decide (as I would decide) that this
particular statute simply goes too far. And such examples-of what
goes too far-sometimes offer better constitutional guidance than
more absolute-sounding rules. In any event, "this Court sits" in
part to decide when a statute exceeds a constitutional boundary.
See
Panhandle Oil, 277 U. S., at 223 (Holmes, J.,
dissenting). In my view, "[t]ext, history, and precedent,"
ante, at 199, support both the need to draw lines in general
and the need to draw the line here short of this statute. See
supra, at 242-248, 260-263. But see
ante, at 199, n.
4.
Finally, the Court complains that I have not "restrained" my
argument or "train[ed my] fire, as petitioners do, on Congress'
choice to place existing and future copyrights in parity."
Ante, at 193, n. 1, and 199, n. 4. The reason that I have
not so limited my argument is my willingness to accept, for
purposes of this opinion, the Court's understanding that, for
reasons of "[j]ustice, policy, and equity"-as well as es-
266
tablished historical practice-it is not "categorically beyond
Congress' authority" to "exten[d] the duration of existing
copyrights" to achieve such parity.
Ante, at 204 (internal
quotation marks omitted). I have accepted this view, however, only
for argument's sake-putting to the side, for the present, JUSTICE
STEVENS' persuasive arguments to the contrary,
ante, at
226-242 (dissenting opinion). And I make this assumption only to
emphasize the lack of rational justification for the present
statute. A desire for "parity" between A (old copyrights) and B
(new copyrights) cannot justify extending
A when there is no
rational justification for extending B. At the very least (if I put
aside my rationality characterization), to ask B to support A here
is like asking Tom Thumb to support Paul Bunyan's ox. Where the
case for extending new copyrights is itself so weak, what
"justice," what "policy," what "equity" can warrant the tolls and
barriers that extension of existing copyrights imposes?
IV
This statute will cause serious expression-related harm.
It will likely restrict traditional dissemination of copyrighted
works. It will likely inhibit new forms of dissemination through
the use of new technology. It threatens to interfere with efforts
to preserve our Nation's historical and cultural heritage and
efforts to use that heritage, say, to educate our Nation's
children. It is easy to understand how the statute might benefit
the private financial interests of corporations or heirs who own
existing copyrights. But I cannot find any constitutionally
legitimate, copyright-related way in which the statute will benefit
the public. Indeed, in respect to existing works, the serious
public harm and the virtually nonexistent public benefit could not
be more clear.
I have set forth the analysis upon which I rest these judgments.
This analysis leads inexorably to the conclusion that the statute
cannot be understood rationally to advance a constitutionally
legitimate interest. The statute falls outside
267
the scope of legislative power that the Copyright Clause, read
in light of the First Amendment, grants to Congress. I would hold
the statute unconstitutional.
I respectfully dissent.
APPENDIX TO OPINION OF BREYER, J.
A
The text's estimates of the economic value of 1998 Act
copyrights relative to the economic value of a perpetual copyright,
supra, at 255-256, as well as the incremental value of a
20-year extension of a 75-year term,
supra, at 254255, rest
upon the conservative future value and discount rate assumptions
set forth in the brief of economist
amici. Brief for George
A. Akerlof et al. as
Amici Curiae 5-7. Under these
assumptions, if an author expects to live 30 years after writing a
book, the copyright extension (by increasing the copyright term
from "life of the author plus 50 years" to "life of the author plus
70 years") increases the author's expected income from that book-i.
e., the economic incentive to write-by no more than about
0.33%.
Id., at 6.
The text assumes that the extension creates a term of 95 years
(the term corresponding to works made for hire and for all existing
pre-1978 copyrights). Under the economists' conservative
assumptions, the value of a 95-year copyright is slightly more than
99.8% of the value of a perpetual copyright. See also Tr. of Oral
Arg. 50 (Petitioners' statement of the 99.8% figure). If a "life
plus 70" term applies, and if an author lives 78 years after
creation of a work (as with Irving Berlin and Alexander's Ragtime
Band), the same assumptions yield a figure of 99.996%.
The most unrealistically conservative aspect of these
assumptions, i.
e., the aspect most unrealistically
favorable to the majority, is the assumption of a constant future
income stream. In fact, as noted in the text,
supra, at 248,
uncontested data indicate that no author could rationally
expect
268
Appendix to opinion of BREYER, J.
that a stream of copyright royalties will be constant forever.
Indeed, only about 2% of copyrights can be expected to retain
commercial value at the end of 55 to 75 years.
Ibid. Thus,
in the overwhelming majority of cases, the ultimate value of the
extension to copyright holders will be zero, and the economic
difference between the extended copyright and a perpetual copyright
will be zero.
Nonetheless, there remains a small 2% or so chance that a given
work will remain profitable. The CRS Report suggests a way to take
account of both that likelihood and the related "decay" in a work's
commercial viability: Find the annual decay rate that corresponds
to the percentage of works that become commercially unavailable in
any given year, and then discount the revenue for each successive
year accordingly. See CRS Report 7. Following this approach, if one
estimates, conservatively, that a full 2% of all works survives at
the end of 75 years, the corresponding annual decay rate is about
5%. I instead (and again conservatively) use the 3.8% decay rate
the CRS has applied in the case of books whose copyrights were
renewed between 1950 and
1970. Ibid. U sing this 3.8% decay
rate and the economist
amici's proposed 7% discount rate,
the value of a 95-year copyright is more realistically estimated
not as 99.8%, but as 99.996% of the value of a perpetual copyright.
The comparable "Irving Berlin" figure is 99.99999%. (With a 5%
decay rate, the figures are 99.999% and 99.999998%, respectively.)
Even these figures seem likely to be underestimates in the sense
that they assume that, if a work is still commercially available,
it earns as much as it did in a year shortly after its
creation.
B
Conclusions regarding the economic significance of "works made
for hire" are judgmental because statistical information about the
ratio of "for hire" works to all works is scarce. Cf.
Community
for Creative Non-Violence v.
Reid, 490 U. S. 730, 737-738,
n. 4 (1989). But we know that, as of 1955,
269
copyrights on "for hire" works accounted for 40% of newly
registered copyrights. Varmer, Works Made for Hire and on
Commission, Study No. 13, in Copyright Law Revision Studies Nos.
1-19, prepared for the Subcommittee on Patents, Trademarks, and
Copyrights of the Senate Committee on the Judiciary, 86th Cong., 2d
Sess., 139, n. 49 (Comm. Print 1960). We also know that copyrights
on works typically made for hire-feature-Iength movies-were
renewed, and since the 1930's apparently have remained commercially
viable, at a higher than average rate. CRS Report 13-14. Further,
we know that "harmonization" looks to benefit United States
exports, see,
e. g., H. R. Rep. No. 105-452, p. 4 (1998),
and that films and sound recordings account for the dominant share
of export revenues earned by new copyrighted works of potential
lasting commercial value (i.
e., works other than computer
software), S. Siwek, Copyright Industries in the U. S. Economy: The
2002 Report 17. It also appears generally accepted that, in these
categories, "for hire" works predominate. E. g., House Hearings 176
(testimony of the Register of Copyrights) ("[A]udiovisual works are
generally works made for hire"). Taken together, these
circumstances support the conclusion in the text that the extension
fails to create uniformity where it would appear to be most
important-pre-1978 copyrighted works nearing the end of their
pre-extension terms, and works made for hire.
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