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“appropriate” and “plainly adapted” to achieving that end.’“/47Thus, the

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appropriate standard of review for claims such as those made by plaintiffs is lenient.

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A “rational basis” –that is, a rational connection between means and end – will

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suffice to uphold Congress’ legislation./48Under this lenient standard of review, the

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legislative history discloses a variety of rational bases for the CTEA that are

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appropriate and plainly adapted to achieving the ends of the Copyright Clause.

6

B. Ensuring A Fair Return To The Owners Of Subsisting Copyrights
Is A Constitutional Basis For Congress To Extend The Terms Of
Subsisting Copyrights.

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8
9
10
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Prior to the CTEA , due to new conditions, the Copyright Act no longer

provided a fair return to authors with subsisting copyrights. The theory underlying

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the Copyright Clause is that if authors are promised a fair return for their works,

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they will serve the public interest by publishing and disseminating their works. If

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the fair return that induced authors to publish is dissipated by future conditions, the

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promise of a fair return provides less inducement to present authors to publish. If,

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on the other hand, authors work within a system in which changing conditions are

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not allowed by Congress to undercut the worth of the fair return that was promised,

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published authors will have a stronger incentive to publish new works and thus

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serve the public interest. Therefore, it promotes the progress of the arts to modify

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the terms of subsisting copyrights in light of changing conditions, and, thereby, it

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satisfies the underlying theory of the Copyright Clause.

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47/

Id.

48/United States v. Carolene Prods. Co., 304 U.S. at 152. See also McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316 (1819).

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1. The goals of the 1976 Copyright Act were to protect an author’s

1

return for at least the life of the author and his children.

“The rights

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conferred by copyright are designed to assure contributors to the store of

3

knowledge a fair return for their labors.”/49There are no inherent guides or

4

principles that determine what a “fair” return is. Historically, a fair return for

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individual authors has included a concern that the economic benefits of copyright

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extend to the author through his old age and to his dependents. As the Register of

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Copyrights stated in 1962, while Congress was considering legislation to extend

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subsisting copyrights until the enactment of a general revision of the Copyright

9

Act,/50the “principal reason * * * [of such extensions is] to assure the benefits of

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copyright to the author during his old age or to his dependents, a point which has

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been made again and again this morning.”/51Thus, with the increased life

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expectancy due to medical breakthroughs, extension of the copyright law was seen

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as necessary by many./52The House Report noted: “It has been suggested that the

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49/

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

50/

See Pub. L. No. 87-668, 76 Stat. 555 (1962).

51/Extending the Duration of Copyright Protection in Certain Cases: Hearing Before Subcomm. No. 3 of the
Comm. on the Judiciary, 87th Cong. 12 (1962) (“Hearing”) at 62 (testimony of Abraham L. Kamenstein). See also,
Hearing, at 4 (statement of Hale Boggs) (extending the protection would enable authors “many of whom are alive,
whose works were published in the period between 1906 and 1911” to “continue to earn their livelihood and to
support themselves out of the earnings derived from those of their works which still enjoy public favor. The families
of creators who have died will be able to maintain themselves as self-supporting citizens from the proceeds of their
patrimony.”); Hearing, at 9 (statement of John Schulman) (“The authors of these works, many of whom are still
living and who wrote during a lush period of our national culture, will be deprived of their property....”); Hearing, at
25 (Marc Connelly, counsel for Authors League of America) ( “This term assures that he can participate in income
from his works so long as he lives; and it permits his family and heirs to have the benefits of the literary property he
has created for a limited time after his death”).

52/The expression of such sentiments was legion. Representative Boggs argued that the historical underpinnings
of the 1831 and 1909 copyright revisions increasing the terms of subsisting copyrights were also, in great part, the
results of the increased life span of the American people, and that the 1976 Copyright Act should take the same
matters into consideration. Hearing,3-4See also Hearing,23 (testimony of Helen Sousa Abert, daughter of John

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term of copyright has been lengthened from time to time in a manner reflecting the

1

increased life expectancy.”/53With such goals in mind, Congress, in the 1976

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Copyright Act, changed the general formula for calculating the term of copyright

3

protection from a fixed term to a term of life of the author plus 50 years.

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2. One goal of the CTEA’s term extensions was to keep the promise

5

made in the 1976 Copyright Act to provide authors with a fair return.

The

6

experience of 20 years under the 1976 Copyright Act convinced Congress that the

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goal of the 1976 act – providing copyright protection for authors for their lives and

8

for their children – had not been achieved.

As Senator Feinstein, oneof the

9

sponsors of the CTEA stated:

10

The fundamental animating principle of copyright protection was – and
remains – assuring that the Nation’s most creative individuals have and
retain a sufficient economic incentive to continue to craft
* * * the incomparable mosaic of our Nation’s cultural life. * * * Such
incentive has been considered to be 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. * * *Human longevity,
however, is increasingly undermining this fundamental precept of
copyright law, * * * and with it the economic incentive deemed
essential by the authors of the Constitution./54

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23
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Likewise, Senator Hatch stated:

Phillip Sousa) (“The Congress, I am sure, has passed a number of laws that suit the change and progress of our
times. As the science of geriatrics advances, the copyright laws should keep pace, just as the others have said before
me.”); Hearing, at 11 (testimony of John Schulman) (“I need not remind the committee of the great progress that has
been made in this country which has resulted in the increase of the lifespan of our population. Our people live
longer; and our authors live longer; their period of creativity starts earlier and ends later. What was adequate in 1909
is not adequate today.”); Hearing, at 68 (statement Burton Lane, President, American Guild of Authors and
Composers) (“It is highly incongruous that while science has focused much of its progress upon lengthening the
lives of our citizens, many of the most creative of these may be deprived of necessities of life by a quirk in the
structure of our laws.”).

53/H.R. Rep No. 87-1742, at 2.

54/141 Cong. Rec. S3393 (daily ed. March 2, 1995).

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20 years ago, Mr. President, Congress fundamentally altered the way
in which the U.S. calculates its term of copyright protection by
abandoning a fixed-year term of protection and adopting a basic term
of protection based on the life of the author. In adopting the life-plus-50
term, Congress cited three primary justifications for the change
[including] * * *the insufficiency of the U.S. copyright term to
provide a fair economic return for authors and their dependents
* * *. Developments over the past 20 years have led to a widespread
reconsideration of the inadequacy of the life-plus-50-year term * * *.
Among the main developments 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./55

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Similarly, the Senate Judiciary Committee was also concerned that the terms

established by the 1976 Copyright Act had become “increasingly inadequate to

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protect some works for even one generation of heirs as parents are living longer and

17

having children later in life.”/56Consequently, the Committee concluded that an

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additional 20 years of copyright protection was necessary “[i]n order to reflect

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more accurately Congress’ intent and the expectation of America’s creators that the

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copyright term will provide protection for the lifetime of the author and at least one

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generation of heirs * * * .”/57That is, in 1976, Congress was not merely granting

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authors an arbitrary term of 50 years plus life. Rather, the term was a means to an

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end:The 1976 Act was encouraging authors to create and publish new works with

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the expectation that their copyrights would last not only for their lives, but for the

25

lives of their children.

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This intended inducement was not achieved in fact. Thus, one goal

27

underlying Congress’ enactment of the CTEA was to correct the failure of the 1976

28

55/144 Cong. Rec. S12377-01, S12378.

56/S. Rep. No. 315, 104th Cong., 2d Sess, at 10 (July 10, 1996) (“Senate CTEA Report”).

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Act. A longer term was called for in order to achieve the protection that had been

1

intended and expected.

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To be sure, the ultimate aim of providing a fair return for creative labor is a

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public purpose,“to stimulate artistic creativity for the general public good.”/58

4

Correcting failures of previous laws to achieve the intended fair result to authors is

5

reasonably related to the goal of the Copyright Clause and is itself a sufficient basis

6

upon which Congress could have extended the terms of subsisting copyrights./59

7

However, even if plaintiffs’ arguments concerning the need for “incentives” had

8

merit, Congress’ extension of subsisting copyrights has that effect. Potential

9

authors, aware that Congress is attentive to ensuring that they will receive a “fair

10

return” that will not be frustrated by future, unpredicted contingencies, will have a

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greater incentive to produce works. Plaintiffs’ error lies in limiting their focus to the

12

immediate beneficiaries of the benefit bestowed. When one’s viewpoint shifts to the

13

functioning of the copyright system as a whole, the incentive provided by Congress’

14

traditional extensions of subsisting copyrights is clear. People have more incentive

15

to create new works within a system in which the Government keeps its promises.

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3. The CTEA term, under present conditions, no longer provides

17

authors with subsisting copyrights a fair share of the marketable life of a

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57/

Id.11.

58/This Court has stated,not each exercise of the copyright power need “‘be shown to promote the useful arts.’”
667 F.2d at 112. See also Fox Film Corp. v. Doyal, 286 U.S. 123 (1932). See Kendall v. Winsor, 62 U.S.

(21

How.) 322, 327-328 (1858);Grant v. Raymond, 31 U.S. (6 Pet.) 218, 241-242 (1832).

59/InSchnapper, where the Court was concerned with the ability of the Government to obtain copyrights in works
commissioned by the Government, the Court emphasized that the introductory language of the Copyright Clause –
“To promote the Progress of Science and useful Arts” – does not place “a limit on congressional power,” and not

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work.

Members of Congress also expressed concern that the holders of copyrights

1

were no longer, due to changed circumstances, deriving a fair share of of the

2

marketable life of their works. As Senator Hatch noted, there was widespread

3

concern in Congress that:

4

The U.S. copyright term [has failed] to keep pace with the substantially
increased commercial life of copyrighted works resulting from the
rapid growth in communications media. * * * * [U]nprecedented
growth in technology over the last 20 years, including the advent of
digital media and the development of the national Information
Infrastructure and the Internet, have dramatically enhanced the
marketable lives of creative works./60

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Implicit in Senator Hatch’s comments is that a fair return to the holders of a

copyright should also be commensurate with the marketable lives of creative

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works./61Congress has broad flexibility to implement the stated purpose of the

15

Framers by selecting the policy that in its judgment best accomplishes the

16

constitutional aim. Hence considerations such as the marketable life of a product are

17

among reasonable bases for establishing the fair term limits that should be afforded

18

to copyright holders. If Congress recognizes that, due to changed circumstances,

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each exercise of the copyright power need “‘be shown to promote the useful arts.’”Schnapper, 667 F.2d at 112
(citations omitted).

60/See alsoRegister of Copyrights, Copyright Law Revision, 87th Cong., 1st Sess., 6 (Comm. Print 1961)
(emphasis added):

[The limitations on copyright] should be broad enough to give them a fair share of the revenue to be derived
from the market for their works.

61/See also, e.g., (Statement of Mr. George David Weiss, President, Songwriters Guild of America) “Pre-1978
Distribution of Recordings Containing Musical Compositions; Copyright term Extension; and Copyright Per
Program Licenses,” Hearing Committee of the Judiciary; Subcommittee on Courts and Intellectual Property, 98-
H521-9, June 27, 1997 (p. 86).

There is yet another, related reason why a 20 year extension is important to creators. Technological
developments over the last two decades have greatly increased the commercial life and value of
copyrighted works, even those that are older. The CD and the VCR are obvious examples of new
technologies that have and will increase creators’ rewards. Moreover, expanded cable television,

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copyright holders are obtaining less than what Congress determines to be a fair

1

portion of the marketable life of a product, it may correct this error. And, similarly,

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potential authors, be they individuals or companies, will be more inclined to produce

3

new works knowing that Congress will assure them a fair portion of the marketable

4

life of a product, should circumstances change.

5

C. Harmonizing Copyright Laws With Those Of Foreign Nations Is A
Rational Basis For Extending The Terms Of Subsisting Copyrights.

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7
8
9

The certainty and simplicity that uniform copyright terms bring to

international business dealings is a benefit to copyright holders. It makes the

10

exercise of their rights safer and more effective. A copyright act that brings such

11

benefits to American authors is thus a means of

securing the rights of authors,

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present and future, which is one of the goals of the Copyright Clause./62This

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benefit, sought by both the 1976 copyright legislation and CTEA, is sufficient to

14

justify Congress’ enactment of term extensions to subsisting copyrights./63For

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Congress is empowered to “secure” the rights of authors with subsisting copyrights.

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And under the courts’ settled construction of the Necessary and Proper Clause,

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Congress may utilize “all appropriate means which are conducive or adapted to the

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satellite services, and the “‘information superhighway’” all will require programming—music and
video. Creators and their heirs should benefit from these technological advances.

62/See generallyOrrin Hatch, Essay:Toward a Principled Approach to Copyright Legislation at the Turn of the
Millennium, 59 U. Pitt. L. Rev. 719, 728 and passim(1998).

63/

See 141 Cong. Rec. E379 (daily ed. February 6, 1995) (statement of Rep. Moorhead):

The last time the Congress considered and enacted copyright term extension legislation was in
1976. At that time the House report noted that copyright conformity provides certainty and
simplicity in international business dealings. * * *The 1976 law needs to be revisited since
[this] objective[ is] not being met.

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end to be accomplished, and which in the judgment of Congress will most

1

advantageously effect it.”/64

2

Moreover, the current global situation makes achieving uniformity more

3

urgent. The current global trend in copyright protection is a term of the life of the

4

author plus 70 years. As Senator Hatch pointed out:

5

Of particular importance is the 1993 directive issued by the
European Union, which requires its member countries to implement a
term of protection equal to the life of the author plus 70 years by July
1, 1995.

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According to the Copyright Office, all the states of the European
Union have now brought their laws in compliance with the directive.
And, as the Register of Copyrights has stated, those countries that are
seeking to join the European Union, including Poland, Hungary,
Turkey, the Czech Republic, and Bulgaria, are likely, as well, to amend
their copyright laws to conform with the life-plus-70 standard./65

Recent technological advances, which make possible the cost-free transmission of

authors’ works to any part of the world, make uniform world standards and

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international cooperation particularly important. The United States has great

20

prestige; the economic power and value of its copyrights are immense. It is evident

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that as long as the United States has different standards, there will be no world

22

uniformity. Other nations, on the basis of the United States’ example, might set

23

different terms, which do not secure for American authors the exclusive rights to

24

their works for a fair and just time. As the Report of the Senate Judiciary

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Committee stated:

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64/The Legal Tender Cases, 110 U.S. 421, 440 (1884); McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 420;
Schnapper, 667 F.2d at 112; Mitchell Bros. Film Group, 604 F.2d at 860.

65/144 Cong. Rec. S12377-01, S12378.

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The Committee recognizes the increasingly global nature of the market
for U.S. copyrighted works. Uniformity of copyright laws is
enormously important to facilitate the free flow of copyrighted works
between markets and to ensure the greatest possible exploitation of the
commercial value of these works in world markets for the benefit of
U.S. copyright owners and their dependents. Indeed, in an age where
the information superhighway offers widespread distribution of
copyrighted works to almost anywhere in the world at limited costs,
harmonization of copyright laws is imperative to the international
protection of those works and to the assurance of their continued
availability./66

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The same points are reiterated in testimony of the Register of Copyrights before the

Committee:

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The Copyright Office believes harmonization of the world’s copyright
laws is imperative if there is to be an orderly exploitation of
copyrighted works. In the past, copyright owners refrained from
entering certain markets where their works were not protected. In the
age of the information society, markets are global and harmonization of
national copyright laws is, therefore, crucial. . . . [T]he development of
the global information infrastructure makes it possible to transmit
copyrighted works directly to individuals throughout the world and has
increased pressure for more rapid harmonization. /67

Thus, seeking uniform standards to help to “secur[e]* * * the exclusive Right to

their respective Writings” is today an urgent matter./68

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Moreover, as in other areas, it may reasonably be presumed that authors have

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more incentive to produce new works within a system that is concerned to protect

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and secure their rights in the future by seeking global harmonization to counteract

30

the threats of the digital age. Every time the Government takes steps to secure the

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safety of the benefits that induced authors to publish in the past, the point is made

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66/

Senate CTEA Reportat 8.

67/

Senate CTEA Hearingat 20.

68/Constitution, Art. I, § 8, cl. 8 (emphasis added).

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that the Government will not allow its promises to be undercut by future

1

contingencies. Every time this happens, new writers have more incentive to

2

produce and disseminate their works to the public.

3

Plaintiffs respond that the CTEA does not establish full harmony:it brings us

4

out of harmony with some Asian countries that provide less protection, and that in

5

other respects, such as protection for corporate authors, the CTEA provides more

6

protection than does the European Union./69

7

But harmony need not come in one fell swoop. And Congress could

8

conclude that the harmony that has been achieved – the setting of a basic term of

9

life plus 70 years – is a fundamental first step, and that it is sufficiently significant to

10

outweigh other points of disagreement. The judgment about how far to go, or how

11

much can in practice can be accomplished, is one for Congress to make:“Congress

12

has the constitutional authority and the institutional ability to accommodate fully the

13

varied permutations of competing interests that are inevitably implicated by * * *

14

new technology.”/70

15

D. Providing Increased Resources To Stimulate Creation Of New
Works and To Preserve Existing Works Is A Constitutional Basis For
Extending The Terms Of Subsisting Copyrights In Works For Hire.

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A work made for hire is owned by the employer of the people who create the

work “within the scope of [their] employment.”/71For such works, there is no

21

“author” by whose life a copyright term may be measured. The term of protection

22

for works for hire in the 1976 Copyright Act was set at 75 years from the date of

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69/App. Br. 44-45.

70/

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).