© COPYRIGHT EXTENSION
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Congress May Constitutionally Extend The Term of Copyrights

Below are excerpts of every argument of why Congress may extend the term of copyrights and the basis for doing this:

“Beginning with the first Copyright Act in 1790, Congress has consistently expanded the scope and term of pre-existing copyrights, including those which have previously been assigned to others, whenever it has expanded the scope and term of future copyrights. Moreover, the courts have made clear that the power of Congress to grant copyrights is not limited merely to cases in which it will provide an ‘incentive to future individual creativity’. . . .

“The very first federal copyright act, enacted by the First Congress in 1790, expressly authorized the granting of copyrights in existing works ‘already printed within these United States’ to the author or to the author’s ‘executors, administrators or assigns’. This first federal grant of copyright would have been unconstitutional under plaintiffs’ theory, because the granting of copyrights in works ‘already printed’ could not have induced the creation of such works. Yet the First Congress plainly did not regard the 1790 Act as inconsistent with the Copyright Clause. As the Supreme Court held . . ., the judgment of the First Congress is entitled to ‘very great weight,’ made as it was by members who were ‘contemporary with [the] formation [of the Constitution], many of whom were members of the convention which framed it . . . .’

“Nor was the first copyright act a special case. The interpretation of the Copyright Clause reflected in the 1790 Act has been repeatedly reaffirmed over more than two centuries of consistent practice. The Copyright Act of 1831, which extended the initial copyright term from 14 years to 28 years, applied in equal measure to existing as well as future works. The next extension of the copyright term, in 1909, which lengthened the renewal term from 14 to 28 years, likewise operated with respect to existing as well as future works. The Copyright Act of 1976 provides yet another demonstration of Congress’s consistent policy of extending rights in existing as well as future works when revising the federal copyright laws. The 1976 legislation specifically expanded the terms of the copyrights for pre-existing works, using various formulas that were intended to approximate the new copyright term of life of the author plus 50 years. . . .

“Thus . . . by extending the terms of existing as well as future copyrights, is part of an unbroken chain of similar congressional enactments spanning more than two centuries from 1790 to 1998. As the Supreme Court held . . ., this history not only is entitled to ‘very great weight,’ but is ‘almost conclusive’ with respect to the constitutionality of extending the terms of existing as well as future copyrights.

”. . . When Congress has expanded the scope of copyright protection to embrace new media of expression and new modes of communication, it has made the new scope of protection available to existing works, thereby conferring new rights with respect to old works. Thus, in addition to the examples of copyright term extensions discussed in the text: ‘there are many cases in which rights in existing works have been expanded, even though they can hardly be imagined to induce the creation of works that have already been created. When Congress . . . expanded the scope of copyright to include the right of public display (presumably applying to existing works as well), or of public performance of musical works whether or not for profit, or added the cable compulsory license, or added certain moral rights for visual artists in 1990, all of which affected existing as well as future works, it expanded rights in a way that can hardly be said to ‘induce’ the creation of new works. It is simply incorrect to conclude that every aspect of a new copyright law can be justified if and only if it ‘promotes’ the creation of new works. It is enough that the copyright laws generally promote such progress’.” . . .

“In addition to encouraging the creation of new works, copyright extension has additional purposes which also serve the broad constitutional goal of ‘promot[ing] the Progress of Science and useful Arts.’ All of these purposes have their counterparts in past copyright acts, and further support the constitutionality of extending the term of copyrights.

“An important purpose . . . is harmonization of the terms of United States copyrights with the life-plus-70-year term recently adopted by the European Union, which will avoid discrimination against United States authors and will produce significant concomitant benefits to the United States balance of payments. This purpose is just as vital for existing copyrights as it is for future copyrights; indeed, the immediate positive impact of term extension on the United States balance of payments can be achieved only if the terms of existing as well as future United States copyrights are extended.

“Harmonization of copyright terms is a longstanding goal of federal copyright law. The very inclusion of the Copyright Clause in the Constitution reflected a desire to replace varying state copyright laws with a uniform federal statute . . . . Over the years, Congress has often taken international factors into account in enacting federal copyright legislation, notably in the Copyright Acts of 1831, 1909, and 1976 and in the Berne Convention Implementation Act of 1988. Among the many benefits of harmonization of United States copyright terms with those of other nations is the simplification of international copyright transactions and, with it, encouragement of exchanges of intellectual property—all of which plainly advances the aims of the Copyright Clause by ‘promot[ing] the Progress of Science and useful Arts.’

“Another significant objective of copyright extension is to encourage investment in existing copyrighted works (for example, by the conversion of such works into a digital medium or into new media that might be created in the future). As Congress explicitly recognized, the achievement of this objective requires extending the term of existing copyrights. Clearly, encouraging digitization and other means of investment in existing copyrighted works furthers the goals of the Copyright Clause by ‘promot[ing] the Progress of Science and useful Arts.’

“Another key purpose . . . is to make fair provision for the children and grandchildren of authors in an era of lengthening life spans. Congress has repeatedly shown its concern for authors’ descendants in extending the terms of copyrights, notably in the Copyright Acts of 1831, 1909, and 1976, . . . and the Supreme Court has recognized the strength of this concern. . . . Each time it has lengthened copyright terms, Congress has lengthened the terms of existing as well as future copyrights. The knowledge that Congress has consistently treated existing copyrights even-handedly in this regard is itself an important incentive to the creators of new works, and thereby serves to ‘promote the Progress of Science and useful Arts’.”

Excerpts from a brief filed in the Eric Elred v. Janet Reno case in Washington, D.C. on June 28, 1999. The brief was filed as Amici Curiae on behalf of the Sherwood Anderson Literary Estate Trust; the Sherwood Anderson Foundation; American Society of Composers, Authors and Publishers’ Amsong, Inc.; Association of Publishers, Inc.; Broadcast Music, Inc.; Motion Picture Association of America, Inc.; National Music Publishers’ Association, Inc.; Recording Industry Association of America; and the Songwriters Guild of America (footnotes and legal cites omitted).


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