Guest Post: Copyright term extensions and constitutionality with reference to Eldred v. Ashcroft

SpicyIP is pleased to bring to its readers a guest post by Nirajan Man Singh who is a recent graduate from NALSAR.
“Old books, songs, and movies should flow continuously into the public domain. But the Congress keeps bowing to publishing companies that want to prevent works from ever being available for free. Every time Mickey Mouse threatens to go to the public domain, the lobbyists go to work to get an extension. If the big publishers and media giants have their way, then basically they’ll turn our culture into a pay-per-view event. If Congress had not extended copyright protection, Mickey Mouse cartoons would have begun entering the public domain in 2003.”
-Eric Eldred in an interview with the Chronicles[1]
The Copyright Clause in the American Constitution grants Congress the 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.”[2] Like numerous constitutional texts, these few words lead to innumerable debates. The Copyright Clause explicitly states that Congress shall secure exclusive rights for authors only “for limited Times”.[3]Although the clause states that protection should be temporally fixed, it does not specify any particular length of time. In 1998, Congress extended the copyright term by twenty years, prospectively and retrospectively, to this Eric Eldred, a publisher of public domain works, sued, arguing that the Sonny Bono Copyright Term Extension Act (CTEA) violated both the “limited times” provision of Article I, Section 8 and the First Amendment. He lost at every level.
The affirmation of the court towards Congress’s decision to periodically extend the copyright term, suggests that no absolute, concrete limit exists, so long as the term is not perpetual. When Congress first provided for copyright protection in 1790, the term of protection was 14 years with the renewal right for another 14 years provided the author was alive at the end of the initial term.[4] The Congress expanded the copyright term in 1831 by doubling the initial term from 14 to 28 years and permitting surviving widows and children to seek the 14 year renewal term at the end of the initial term.[5]Later the Congress extended the copyright term by another 14 years in 1909, for a total length of 56 years.[6]In 1976, Congress moved to a unitary copyright term, under which works would be protected for the duration of the author’s life plus fifty years. [7]Now, the Copyright Term Extension Act of 1998 (CTEA) again extended the term; works are now protected for the duration of the author’s life plus 70 years.
Eldred v. Ashcroft questioned whether the CTEA violated the “limited Time” provision of the Copyright Clause, rendering it unconstitutional. This case argued that retrospective extension of copyright legislation should be subject to heightened scrutiny to ensure an appropriate fit between the means used and the end sought to be achieved. The petitioners argued that CTEA was unconstitutional because Congress was effectively stringing together an unlimited number of limited Times. Further, they urged the court to adopt a bright-line test [8] under which any retrospective extension of copyright protection is unconstitutional.
When the matter reached the Supreme Court, surprisingly the majority did not discuss the public domain, but frequently stressed on role of Congress in deciding whether copyright legislation will further the ends of the Copyright Clause. It was the dissenting Justices who addressed the importance of the public domain and the detrimental effect of a copyright term extension. Justice Stevens asserted that “the overriding purpose of the constitutional provisions is ultimate public access to materials”, which means that Copyright material enters the public domain. He asserts that it is well settled that the Copyright clause is “both a grant of power and a limitation” and that Congress may not over-reach the restraints imposed by the stated constitutional purpose.[9] Similarly, Justice Breyer saw the Copyright Clause constructed to favor the public domain. As per him, “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.” He suggested certain standards that would determine whether a statute lacks 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.[10]
Contrary to this, the Majority held, the 20-year retroactive extension of existing copyright terms did not violate the Copyright Clause or the First Amendment of the United States Constitution. The Court dismissed petitioners’ argument upholding CTEA, stating that the twenty-year extension did not amount to an unlimited time period. It was further argued that the petitioners had failed to show how the CTEA crosses a constitutionally significant threshold with respect to ‘limited Times’ that the 1831, 1909, and 1976 Acts did not. The Court gave significant weight not only to the policy reasons offered in support of the CTEA, but also to the longstanding congressional practice of copyright extensions.
I can come to visualize that Copyright covers more works and grants more rights for a longer time. Most importantly, copyright now affects ordinary people every day, some more than others, as the people being sued by the Recording Industry Association of America for uploading music have discovered to their sorrow. [11] For all these reasons, copyright is a more significant restraint on what people can say now than ever before.
Not everyone wants copyright extension, the Navajivan Trust decided not to ask one over Mahatma Gandhi’s works, this decision was subject to disapproval by many Gandhians as they argued that it would lead to misinterpretation of literatures and ‘text-torturing’. On the other hand Vishwa-Bharathi University, which held the copyrights for Rabindranath Tagore’s works seeked an extension in 2001 which was rejected by the center stating ” the advantages of putting Tagore’s works in the public domain far outweighed those of keeping them under an institute’s wings”.
I personally feel a limited time must not only be “fixed”, but it must also have a determinate end and cannot be subject to endless openings and closings. Such limited time is for the advan­tage of both the inventor and the society at large, which is to take the benefit of the invention after the period of limitation has expired. It is virtually a contract between each Copyright holder and the public, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.
As posted on Spicyip, famous director Nina Paley was also the victim of copyright extension as she was unable to release her award winning film commercially. Though the copyright over the sound recording of the music used in the movie expired, the lyrics and written music for the songs were still protected as musical works under Sony Bono Copyright Term Extension Act, much to the shock of the director. Needless to mention, expiry of copyright opens new avenues, innovative adaptations of Tagore’s works has led to widest possible access to, and dissemination of his works. Also, once the work is in the public domain, there is no question of monopoly rights, making the work affordable for the masses. Moreover, one should not forget copyright is not limited to economic rights of the author, it includes “moral right” as well. Hence, though the author have sold his copyright, he continues to retain other kinds of right in his work, including the right to be acknowledged as the author of his own work and the right to restrain the mistreatment of his work.[12] When the question of quality comes then these rights plays a valuable role in protecting the integrity of important works of culture that make up a country’s cultural heritage. Further I feel there should be a regulating body especially created to monitor misinterpretation of original work.
In addition, even the doctrine of fair use seems ineffective, in this doctrine four factors are considered: (1) the purpose of the use, including whether it is commercial or non-profit; (2) the nature of the copyrighted work, granting greater protection to fictional works than to factual ones and to unpublished works than to published ones; (3) the amount and substantiality of the portion used in relation to the original work; and (4) the effect of the use on the market for the original. It is difficult to imagine how one can allow easy access to copies in the service of a free and democratic culture without destroying the copyright owner’s rights entirely.[13]
There could be a problem for democracy when copyright owners set prices so high that some people can’t read or watch what many others do. I believe Eldred can be used as a weapon for future challenges to the erosion of fair use and non-extension of copyright, an issue that some court is going to have to confront eventually. In conclusion to, limited Times is definitely a limitation on authority but whether such limitation translates into any particular length of time remains unclear.
[1] As pointed out by Dan Carnivale, SUPREME COURT WILL HEAR COPYRIGHT CASE AFFECTING ONLINE RESOURCES, February 20, 2002.
[2] Note that the “Copyright Clause” is technically an intellectual property clause, as it enumerates congressional authority for both copyrights and patents.
[3] U.S. Constitution. Art. I, § 8, Cl. 8
[4] Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124 (codified as amended at 17 U.S.C. § 302 (2000).
[5] Act of Feb. 3, 1831, ch. 16, §§ 1-2, 4 Stat. 436, 436 (codified as amended at 17 U.S.C. § 302)
[6] Act of Mar. 4, 1909, ch. 320, § 23, 35 Stat. 1075, 1080 (codified as amended at 17 U.S.C. § 302)
[7] Act of Oct. 19, 1976, , § 302, 90 Stat. 2541, 2572 (codified as amended at 17 U.S.C. § 302). The move to the unitary term meant yet another extension of copyright protection, provided the author’s life expectancy exceeded six years.
[8] A term generally used in law which describes a clearly defined rule or standard, composed of objective factors, which leaves little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application. Bright-line rules are usually standards established by courts in legal precedent or by legislatures in statutory provisions;
[9] Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966)
[10] JUSTICE BREYER THROWS DOWN THE GAUNTLET, Richard A. Posner, Yale Law Journal, May, 2006.
[11] Please visit, (or)
[12] Mira T. Sundara Rajan, “Bharati and his copyright”, The Hindu, Wednesday, Dec 22, 2004.
[13] Supra n. 9
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).


  1. AvatarAnonymous

    Please change the template to something that will make the site more readable and not just a big blob of text that totally turns off visitors.

    You have good stuff here.. just not readable at all because of the template.

  2. AvatarLatha R Nair

    Can’t agree more with Niranjan! A connected issue that popped up in my head when I read Niranjan’s post is that, right now, with the advent of digital technology, there seems to be a disconcerting imbalance of the dual objectives of copyright protection, namely, rewarding creativity and protecting public interest in accessing the copyrighted works. Longer periods of protection for copyright was justifiable and understandable when the modes of dissemination were slower than those that exist today. With technology aiding in high speed dissemination of copyrighted works, do we need such never ending copyright terms? Can’t we shorten the copyright terms and increase the royalty rates to bring in some balance? Just a thought…

  3. Avatarnirajan

    @ Anonymous – Thank you very much for your comment.

    @ Latha R Nair – Thank you for your suggestion. Well this very concept of paying royalties rather than extending copyright terms came numerous times earlier but was difficult to apply. Numerous bottlenecks such as – should same royalties be paid to all copyright holders equally? Will the royalties be determined by the demand the copyright holder make? Or will it be based on the popularity of the author? Especially in a developing country like India paying Royalties seems a bit far-fetched, the government have insufficient funds to satisfy daily needs of its people, rather than spend money as royalties to copyright holders, it might as well spend money on “Seeds” and “Pharmaceutical products” which are much more important. But Lets wait and watch!!!

    @Raghu – Thank you 🙂

    @Anusha – Thank you.

  4. Avatarakshaya

    Hi. I was always fascinated by “Copyright term extension” but never realized there was so much depth and dialogue on it. After reading the article I did a research on my own, so that I can fully understand The Ashcroft case. I think Nirajan’s brief was much better,the case was really long.

    The article gives the authors view which is rare in any other article nowadays, and surprisingly my views goes with Nirajan and Latha, Nirajan what about ROYALTIES? rather than copyright Extentions, can you please ansswer this query? Thanks

  5. Avatarnaive 'me'

    I agree with Latha R Nair, her suggestion is good but seems a bit impractical in India. Even in developing countries like UK, USA such concept have not taken a proper root. I would like to know Nirajan’s view on this followed by Mr. Shamnad’s view and then again Latha’s.

    Oh! and yes I like the article a lot! very well researched. But few grammatical errors, but i am not complaining.


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