c:\spin: Contributed by the Competitive Enterprise Institute, c:\spin is a regular feature in Local Tech Wire. This week’s author is Daren Bakst, guest contributor, freelance writer and former Policy Counsel at the National Legal Center for the Public Interest.

WASHINGTON,In 1998, Congress enacted the Sonny Bono Copyright Term Extension Act, extending copyright protection from life plus 50 years, to life plus 70 years.

Did the extension violate the First Amendment by restricting free speech?

Secondly, did Congress exceed its power under the Patent and Copyright Clause by extending the terms of copyrights, and, particularly, the terms of already existing copyrights?

These questions recently were posed to the Supreme Court in Eldred v. Ashcroft. Despite the parade of professors filing on behalf of Eldred, the Court, in a 7-2 opinion, answered the preceding questions with a resounding “no.”

According to the court, a copyright extension enacted by Congress is not something that must be weighed against First Amendment protection; the Copyright Clause and the First Amendment are compatible with each other. In other words, (though the Court did not explicitly say this) the Copyright Clause is a carved-out constitutional exception to the First Amendment…there is no conflict between the two that must be balanced.

Another way to explain this is to view property rights, including intellectual property rights, as a natural boundary of the first amendment; no one can claim a free speech right to give a speech in someone else’s living room, for example, or to snatch some else’s book out of their hands.

Did Congress exceed mandate?

The next major question that Eldred addresses is whether Congress exceeded its power under the Patent and Copyright Clause to “promote the Progress of Science and the useful Arts, by securing for limited times” exclusive rights. Eldred argued that an extension for existing works does not create an incentive to create new works and is therefore improper. But the Copyright Clause is not merely about incentives for the creation of work…it also is about incentives for the dissemination of works. There is at least a rational argument that can be made that potential creators of works will have more incentive if they know that future extensions will apply to their work, as well as to future work.

The rationale to extend copyrights might be weak. But the Court emphasized that deference must be given to Congress. As the Court says, “We are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be.”

This deference may be the most interesting and possibly disturbing element of the case. The Court does not seem likely to qualify the terms in the Copyright Clause. It does not matter to what degree an extension would promote art and science, as long as it rationally can be argued that it does promote art and science in some small way.

Battle won’t be fought in courts

“Limited time” seems to mean anything short of perpetual. If an extension were made that was 250 years, there is nothing in the opinion that would lead one to conclude that it would be held unconstitutional. Realistically though, the Court would hold that such an extension goes too far; however, extensions come little by little. Eldred makes the argument that Congress could evade the “limited” terms requirement by creating frequent extensions.

Copyright extensions will keep coming for existing and future works, unless, and if, those seeking to ensure that copyrighted works enter the public domain politically organize and make the argument why their interests, and the public’s interests, are so compelling that extensions should be halted.

The “battle” will be won or loss in the political realm. Simply arguing to Congress that an extension violates the intent of the Patent and Copyright Clause will not be enough. Given political realities, it will take compelling public policy arguments and/or political muscle to restrain Congressional power under the Patent and Copyright Clause. One thing is for sure…after Eldred, this battle will not be won in the courts.

CEI: www.cei.org

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