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"To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
An examination of the Framers' intent in fashioning the Copyright Clause adds evidence to the proposition that the Copyright Term Extension Act is unjustifiable. The 20-year extension in protection is inconsistent with the original purpose, ideals and understanding of the Copyright Clause. (See Dixon Law Review Excerpts: "Is Life Plus Seventy Too Much?")
Historical Origins
In Britain in 1710, the Statute of Anne was enacted as the first statutory copyright act. The Act replaced the old common law approach of perpetual copyright and established, for the first time, limits on the duration of the copyright in published works. The most significant feature of the Act was that it set out an overall limitation to protection of a published work, after which it came into the public domain. The copyright lasted for 14 years, after which one 14-year renewal could be sought. This shift away from the common law practice of perpetual copyright was warranted by concern about the preserving works for the public domain.
It is clear that the United States' version of copyright law was influenced by the British system. Like Britain, the United States wanted to strike a balance between concern for the public domain and compensation sufficient to incent creativity. It is particularly striking that both systems endorsed a 28-year absolute maximum for the duration of copyright protection. The United States intended to capture the benefits of limited copyright duration already enjoyed by the British by enacting the Copyright Clause. (See Walterscheid Law Review Excerpts for discussion of history and monopolies.)
Purpose of the Copyright Clause
Before delving into the content of the purpose stated in the Copyright Clause, it is significant to note the uniqueness of the clause, in that it is the only clause in the enumerated powers which states a purpose. This suggests that purpose plays a fundamental role in determining how to administer this particular clause.
The purpose of the clause is stated in the Constitution itself: "To promote the Progress of Science and the useful Arts." In other words, the original intent of the Framers was, from the outset, to stimulate creative production for the public good by means of granting exclusive rights to authors for a limited time. It is in this mindset that the Copyright Clause should be approached; only that protection which is necessary to encourage creators to produce creative works is supported by the purpose of the clause. (See Lavigne Law Review Excerpts supporting this view and challenging the consitutionality of the Copyright Term Extension Act on other grounds).
"For Limited Times"
The Framers intended the phrase "for limited Times" to impose a reasonable limit on duration of copyright. (See Excerpts from Pollack's Law Review Article articulating this position.) Several lines of argument support this assessment:
- The very same men who drafted the Constitution in 1787 selected the 14-year copyright period (with potential for one 14-year renewal) originally adopted in the 1790 Copyright Act. These men believed that a reasonable absolute maximum for copyright protection was 28 years.
- Congress could not both have intended for the author's exclusive rights to extend in perpetuity and promote the explicit purpose of the clause itself. That is, if the author's control was unlimited in duration, there would necessarily come a point at which the author's right would become an undue restraint on the dissemination of the work in contravention to the public good.
- The Framers used the words "for limited Times." "Limited" means limited, and no scholar has offered any reason "limited" should mean anything other than its facial meaning. The language of the Constitution was carefully considered and selected. (See Walterscheid.) It is unlikely that this phrase was included in the enumerated powers without reason. Against the historical backdrop of British common law, subsequently superceded by the Statute of Anne, the clause seems to have served as a rejection of the common law notion of perpetual copyright in favor of limited duration copyright first enacted by the Statute of Anne. The clause was intended to impose limits which would allow works to fall back into the the public domain and foster more creativity and culture.
Anti-Monopoly Mentality
General anti-monopoly attitudes around the time the Constitution was created may have affected the language of the Copyright Clause. Some states and many delegates of Congress, including Jefferson and Madison, indicated aversion to monopolies in general. Although copyright is a form of monopoly, opponents to monopolies in general did not necessarily oppose copyright protection. This probably explains why the Constitutional Convention saw the need to expressly set forth the authority of Congress to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"—in order to distinguish copyrights from other types of monopolies.
The durational limit of the Copyright Clause may explain the distinction perceived by the Framers between copyright protection and the unlimited duration monopolies which they feared. The argument is that because the Framers included the phrase "for limited Times" people did not see copyright as a monopoly, and therefore opposition—which would have been expected from a clause purporting to endorse a form of monopoly—was not present. The fact that Article 1, Section 8, was met with so little controversy and adopted unanimously suggests that the Framers did indeed conceive of copyright as distinct from monopoly. The Framers' noncontroversial acceptance of the Copyright Clause suggests that the Framers believed the phrase "for limited Times" functioned as a meaningful limit on copyright protection, and therefore did not consider the Copyright Clause to pose the same threat as other monopolies. Most likely, without inclusion of the term "for limited Times," at least some opposition to the clause would have surfaced.
Conclusion
Although the official record of discourse concerning the Copyright Clause was sparse (But see Madison's comments in the Federalist No. 43), perhaps due to the noncontroversial nature of the subject, a close examination of the language selected by the Framers, the predispositions of the Framers, and behavior of the Framers strongly suggest that the Copyright Term Extension Act contravenes the spirit and rule of the Constitution.
| Last modified April 11, 1999. | Berkman Center for Internet & Society |