Eldred v. Reno: Response brief of US

OpenLaw Working Draft

31

publication or 100 years from the date of creation, whichever comes first. Under

1

the CTEA, following the general pattern of increasing terms by 20 years, these

2

terms were extended to 95 years and 120 years, respectively.

3

1. Extending terms of subsisting copyrights of works for hire

4

stimulates the production of new art.

Generally speaking, the principal class of

5

works for hire that are likely to have significant economic value at the end of the

6

former 75 year term of protection are motion pictures; the Copyright Office has

7

stated that 19,465 motion pictures would have expired during the term of the

8

CTEA extension./72The stream of income generated by this great number of

9

motion pictures can safely be assumed to be very substantial./73This stream of

10

income is returned to companies engaged in the production of art. Congress

11

concluded that this income stream would stimulate the creation and production of

12

new works of art:

13

The Committee believes that the basic functions of copyright protection
are best served by the accrual of the benefits of increased commercial
life to the creator for two reasons. First, the promise of additional
income will increase existing incentives to create new and derivative
works.
***

14
15
16
17
18
19

71/17 U.S.C. § 101.

72/Funding the Arts Through a Copyright Term Extension Fee, A Report of the Register of Copyrights at 25
(February 23, 1998.)Works derivative from motion pictures, such as “Mickey Mouse,” would also retain value.
The otherworks that would retain significant value through the extension period, such as writings and musical
compositions, are rarely works for hire. Id.

73/The Senate Committee’s Report identified two sources of such increased resources. First, by virtue of the “rule
of the shorter term” adopted by the EU, “[f]ailure on the part of the United States to provide equal protection for
works in the United States will result in a loss for American creators and the economy of the benefits of 20 years of
international copyright protection that they might otherwise have.”Senate CTEA Reportat 7. Second, recent
technological developments have extended the commercial life of copyrighted works. As a result, “the likelihood
that a work will remain highly profitable beyond the current term of copyright protection has increased significantly
. . . .” Id.12.

Eldred v. Reno: Response brief of US

OpenLaw Working Draft

32

Second, extended protection of existing works will provide added
income with which to subsidize the creation of new works. This is
particularly important in the case of corporate copyright owners, such
as motion picture studios and publishers, who rely on the income from
enduring works to finance the production of marginal works and those
involving greater risks (i.e., works by young or emerging authors)./74

1
2
3
4
5
6
7
8

Although there is no requirement that the income received be used to create new

art, it is a fair assumption that income received by companies that produce art will

9

stimulate the production of more art. Stimulating creative activity by authors for

10

the benefit of the public is one of the principal purposes of copyright protection./75

11

On this basis, Congress has constitutional authority to extend the terms of subsisting

12

copyrights in works for hire.

13

Plaintiffs’ only relevant argument in response is that it is “implausible to

14

believe that Hollywood is waiting for the income from films released in 1923 before

15

deciding to invest in the latest edition of Star Wars.”/76This may or may not be

16

true. But it is not Congress’ concern. Rather, Congress is concerned about an

17

additional stream of income “to finance the production of marginal works and those

18

involving greater risks (i.e., works by young or emerging authors).”/77

19

2. Extending terms of subsisting copyrights of works for hire

20

stimulates the preservation of old art.

The Reports of both the House and the

21

74/Senate CTEA Reportat 12. As Jack Valenti, President of the Motion Picture Association, explained to the
Senate Judiciary Committee, the ability of the American motion picture industry to finance the production of new
films is dependent upon the availability of capital derived from prior works. Id. 90.

75/Sony, 464 U.S. at 429; Goldstein v. California, 412 U.S. at 555; Twentieth Century Music v. Aiken, 422
U.S. 151, 156 (1975).

76/App. Br. 48. Plaintiffs also argue that Congress is wrong to assume that “by giving the grandchildren of past
authors money today” more new works will be produced. App. Br. 47. Nor did Congress say this. Its only concern
with stimulating production of new works of art was in the work for hire context.

77/

Senate CTEA Reportat 12.

Eldred v. Reno: Response brief of US

OpenLaw Working Draft

33

Senate Judiciary Committees reflect the fact that the CTEA’s increased copyright

1

term for pre-existing works also is intended to provide an “incentive to restore older

2

works and further disseminate them to the public.”/78As the Senate Report shows,

3

recent technological developments have created a unique opportunity to restore and

4

preserve many artistic works from the 1920s and 1930s that might otherwise

5

degrade:

6

Until now, copyrighted works have been fixed in perishable media,
such as records, film, audiotape, paper or canvas. Copies or
reproductions of these works usually suffer significant degradation of
quality. The digital revolution offers a solution to the difficulties of film,
video and audio preservation, and offers exciting possibilities for
storage and dissemination of other types of works as well.

7
8
9
10
11
12
13
14

In these circumstances, incentives to preserve art fall within the goals of the

Copyright Clause, for they increase incentives to disseminate work to the public. As

15

the Supreme Court observed:

16

Creative work is to be encouraged and rewarded, but private
motivation must ultimately serve the cause of promoting broad public
availabilityof literature, music, and the other arts./79

17
18
19
20
21

Amicus Eagle Foundation argues that “preservationof existing materials * * * does

not constitute promotion of progress”because preservation involves “avoidance of

22

decay” and progress involves “forward movement.”/80However, plaintiffs argue

23

passimthat allowing works to pass into the public domain promotes progress by

24

allowing others to use the material in creative ways. If there is no preservation of

25

existing, decaying materials, these decaying materials will never enter the public

26

78/H. R. Rep. No. 105-452, 105th Cong. 2d Sess. 4 (March 18, 1998); Senate CTEA Report at 13.

79/Sony Corp. of Am. v. Universal City Studios, 464 U.S. at 431-432, (quoting Twentieth Century Music Corp.
v. Aiken, 422 U.S. at 156) (emphasis added).

Eldred v. Reno: Response brief of US

OpenLaw Working Draft

34

domain. No one will ever be able to make use of them. On the other hand,

1

providing incentives to preserve this decaying material will enrich the public domain

2

with art that would otherwise be lost forever. On plaintiffs’ own terms, Congress’

3

taking advantage of this uniqueopportunity to preserve old works of art in

4

permanent media fosters progress in the arts.

5

Plaintiffs also argue that preserving art is not a basis for extending the term of

6

other classes of copyrights. Whether this is true or not, the extension of term for

7

work for hire is fully justified. The justifications for extending the terms of other

8

classes of copyright have been elaborated above.

9

E. The CTEA Does Not Violate The Originality Or “Limited Times”
Requirement Of The Copyright Clause Of The Constitution.

10
11
12
13

1. The originality requirement of the Constitution is not violated by

extending the term of an subsisting copyright.

Plaintiffs argue that extending

14

the term of a subsisting copyright does not differ from granting a new copyright to

15

a “work simply copied from an earlier copyrighted work.”/81Plaintiffs argue this is

16

true because, at time the copyright extension takes effect, the “novelty has worn

17

off.” /82Plaintiffs argue that this identity requires that the validity of the extension

18

must be measured by the same Constitutional conditions that govern the grant of

19

new copyrights./83Relying on cases in which the Supreme Court has held that

20

machines in the public domain cannot be patented, plaintiffs argue that extensions of

21

80/Eagle Foundation Brief9 (emphasis in original)..

81/App. Br. 25.

82/

Id.26.

83/

Id. 25, 26.

Eldred v. Reno: Response brief of US

OpenLaw Working Draft

35

subsisting copyrights fail the Constitution’s “originality” requirement:“Just as a

1

patent cannot cover ‘existent knowledge’ from the public domain’ * * * so too may

2

a copyright not extend to ‘existent knowledge’ even if granted to the original

3

author of that knowledge.” /84

4

No court has ever equated extending a subsisting copyright to granting a new

5

copyright.

6

The purpose of the originality requirement is to determine whether a work is

7

eligible for copyright protection in the first place. The requirement that a work be

8

original is a fairlymodest requirement; “it means only that the work was

9

independently created by the author (as opposed to copied from other works), and

10

that it possesses at least some minimal degree of creativity.”/85Hence, a work that

11

is simply a copy of another work that is in the public domain is not eligible for

12

copyright because it is not an “original work of authorship.”/86But works with

13

subsisting copyrights are, by definition, not a part of the public domain – they are

14

“within the exclusive domain of the copyright owner.”/87They have never been a

15

part of the public domain. Only if documents become part of the public domain by

16

lapse of copyright would “originality” become a relevant concept. Originality,

17

therefore, is a condition relating to eligibility for a new copyright. It has nothing to

18

do with extending the term of existing copyrights, which have already satisfied the

19

condition of eligibility.

20

84/

Id. 27-28.

85/

Feist Publications v. Rural Tel. Ser. Co., 499 U.S. 340, 345 (1990) (emphasis added).

86/17 U.S.C. § 102(a).

Eldred v. Reno: Response brief of US

OpenLaw Working Draft

36

Plaintiffs’ argument that when a copyrighted work reaches the end of its

1

original term, “the novelty has worn off,” confuses the public’s perception of a

2

work with a condition of eligibility for copyright./88

3

In explaining why facts could not be copyrighted, the Supreme Court noted

4

that “[t]o qualifyfor copyright protection, a work must be original to the author

5

* * * [meaning] only that the work was independently created by the author (as

6

opposed to copied from other works).”/89An extension of the term of a copyright

7

is not a “copy” of a prior work. As Congress stated in the CTEA, the original

8

copyright “endures” for an additional time./90

9

2. The “limited Times” requirement of the Constitution is not violated

10

by extending the term of a subsisting copyright.

Plaintiffs argue that the

11

Constitution provides Congress with the power to grant copyrights for “limited

12

Times.”They argue further that “Copyright terms are appropriately ‘limited

13

Times’ only if they are terms that ‘promote the Progress of Science.’“/91Because

14

the extension of terms of subsisting copyrights “chok[es] off the supply of

15

previously protected works into the public domain,” while providing no increase in

16

incentives to balance the restriction of the public domain, they argue that the

17

Constitution is violated./92Plaintiffs contend that upholding the CTEA means “there

18

87/

Sony Corp. of Am. v. Universal City, 464 U.S. 417, 433 (1984).

88/App. Br. 26.

89/

Feist Publications v. Rural Tel. Ser. Co., 499 U.S. at 346 (emphasis added).

90/17 U.S.C. § 304(a).

91/App. Br. 29.

92/App. Br. 28-30.

Eldred v. Reno: Response brief of US

OpenLaw Working Draft

37

could be no limit to Congress’ grant of a copyright, so long as each term was fixed

1

in length. A term of 1,000 years would be as valid * * * as a term of 10 years.”/93

2

But no court has held that extending the term of subsisting copyrights is

3

equivalent to copyrighting a work in the public domain. To the contrary, in

4

McClurg v. Kingsland, in the context of examining which of two laws governed the

5

status of a patent, the Supreme Court stated that Congress may modify the benefits

6

or rights of subsisting patents:

7

[The law governing the rights of patent holders depends] on the law as
it stood at the emanation of the patent, together with such changes as
have been since made; for though they may be retrospective in their
operation, that is not a sound objection to their validity; the powers
of Congress to legislate upon the subject of patents is plenary by the
terms of the Constitution, and as there are no restraints on its exercise,
there can be no limitation of their right to modify them at their
pleasure, so that they do not take away the rights of property in
existing patents./94

8
9
10
11
12
13
14
15
16
17
18

Plaintiffs are correct to note that the grants of copyrights for limited terms are

ultimately intended to serve the public interest. The Supreme Court has noted that:

19

[T]he limited copyright duration required by the Constitution[] reflects
a balance of competing claims upon the public interest:Creative work
is to be encouraged and rewarded, but private motivation must
ultimately serve the cause of promoting broad public availability of
literature, music, and the other arts. The immediate effect of our
copyright is to secure a fair return for an “author’s” creative labor.
But the ultimate aim is, by this incentive, to stimulate artistic creativity
for the general good./95

20
21
22
23
24
25
26
27
28

93/App. Br. 30.

94/McClurg v. Kingsland, 42 U.S. (1 How.) 202, 206 (1843) (emphasis added). The Supreme Court has cited
McClurgwith approval concerning the proposition that “[w]ithin the scope established by the Constitution,
Congress may set out conditions and tests for patentability.”Graham v. John Deere Co. of Kansas City, 383 U.S.
1, 6 (1966).

95/

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

Eldred v. Reno: Response brief of US

OpenLaw Working Draft

38

Inducing authors to make their works available is the public interest sought to be

1

served. Sending works more quickly into the public domain may or may not be a

2

significant element in achieving that public interest. In hearings on the CTEA, the

3

Copyright Office has noted that positions have been taken on both sides of the issue.

4

Some argued that:

5

In fact, the advantage of the “public domain” as a device for making
works more available to the public is highly overrated; especially if
availability is equated with “low cost” to the public. In contrast with
the fact that prices charged the public do not necessarily come down,
or the supply of the work increase, when copyright terminates–the
paperback book is evidence that copyright protection is not
incompatible with mass circulation at low cost to the public./96

6
7
8
9
10
11
12
13
14

Plaintiffs, by contrast, place great importance upon the public domain./97But

wherever the truth may lie upon this subject, even plaintiffs agree that “[w]hether a

15

particular copyright term ‘promote[s] progress is a judgment ordinarily reserved to

16

Congress.”/98The Supreme Court has emphasized “[t]he judiciary’s reluctance to

17

expand the protections afforded by the copyright without explicit legislative

18

96/Statement of Marybeth Peters 24(quotingcomments by Irwin Karp, then-Register ofCopyrights, in
testimonyduring the revision that led to the 1976 Act).

[The Copyright Office takes the position that it] does not believe that a case has been made that extension
of the copyright term would diminish the creation of new works. To make such a case, wesuggest
comparing the experiences in countries with a shorter term to those with a longer term.”Id.at 25.

97/App. 28-29.

98/App. Br. at 29. Among the reasons given by the House Judiciary Committee for lengthening the 1976 Act was

(H.R. Rep. No. 1476, 94th Cong., 2d Sess. 134-35):

Although limitations on the term of copyright are obviously necessary, too short a term harms the
author without giving any substantial benefit to the public. The public frequently pays the same
for works in the public domain as it does for copyrighted works, and the only result is a
commercial windfall to certain users at the author’s expense. In some cases, the lack of copyright
protection actually restrains dissemination of the work since publishers and other users cannot risk
investing in the work unless assured of exclusive rights.

Eldred v. Reno: Response brief of US

OpenLaw Working Draft

39

guidance * * *.”/99While there is no doubt that Congress has been granted the

1

copyright power in order to advance the public good, it is for Congress to weigh the

2

interests and strike the balances. As the Supreme Court noted:

3

As the text of the Constitution makes plain, it is Congress that has been
assigned the task of defining the scope of the limited monopoly that
should begranted to authors or to inventors in order to give the
public appropriate access to their work product. Because this task
involves a difficult balance between the interests of authors and
inventors in the control and exploitation of their writings and
discoveries on the one hand, and society’s competing interest in the
free flow of ideas, information, and commerce on the other hand, our
patent and copyright statutes have been amended repeatedly./100

4
5
6
7
8
9
10
11
12
13
14

There is no ready guidance for a court to interpret the range of the mandate of the

Copyright Clause. It is for Congress to judge to what extent the entry of art into

15

the public domain should take precedence over other interests.

16

3. Plaintiffs’ “limit” and “originality” arguments contradict centuries

17

of national tradition.

While the criteria that should be used in determining

18

whether extensions of the terms of subsisting copyrights are appropriate are not

19

obvious, there is a history of judgments about the duration of copyright in this

20

country with which CTEA is consistent and which contradicts plaintiffs’ reading of

21

the Copyright Clause.

22

a. The CTEA is consistent with the national tradition.

The copyright

23

act enacted in 1790 by the first Congress created a copyright term of 14 years,

24

renewable for an additional 14 years./101This term of protection was afforded both

25

to works “already printed” and subject to protection by state copyright, as well as

26

99/

Sony Corp. of Am. v. Universal City, 464 U.S. at 430.

100/

Sony Corp. of Am. v. Universal City, 464 U.S. at 430.

Eldred v. Reno: Response brief of US

OpenLaw Working Draft

40

writings “that hereafter be made and composed.”/102It is evident that

1

considerations in addition to inducing the production of new works led the First

2

Congress to extend the full term of protection to works already published. The

3

value of uniformity, for example, would have been sufficient to justify protecting

4

existing works already protected by state copyright for some period of time.

5

Since this first act, “as the technology available to authors for creating and

6

preserving their writings has changed, the governing statute has changed with it.”/103

7

There have been five substantial revisions to the statute governing copyrights,

8

including the CTEA./104On four occasions, the term of copyright was extended./105

9

Each time the term was extended, the term of existing copyrights was extended to

10

provide protection to existing copyright holders that was as nearly similar as

11

possible to what was extended to copyrights for newly produced works. Each time,

12

works already in the public domain were left unaffected. Never has an extension of

13

the term of protection for new copyrights not been accompanied by parallel

14

extensions for subsisting copyrights.

15

Thus, CTEA follows the pattern of every major revision to the law governing

16

copyright, enacted by different Congresses, including the First Congress, spaced

17

101/Act of 1790, 1 Stat. 124.

102/Act of 1790, § 1.

103/

Sony Corp. of Am. v. Universal City, 464 U.S. at 460.

104/Act of Feb. 3, 1831, ch. 16, 4 Stat. 436; Act of July 8, 1870, §§ 85-111; Act of Mar. 4, 1909, 35 Stat. 1075
(formerly codified as 17 U.S.C.); Copyright Revision Act of 1976, 90 Stat. 2541 (codified as 17 U.S.C. § 1101 et
seq.(1982 ed).

105/Plaintiffs imply that Congress’ use of the Copyright power has been irresponsible because the CTEA is “the
eleventh time in thirty-seven years that [Congress] has extended the term for subsisting copyrights.”App. Br.1.