With the recent growth of the public domain, will America See Another Copyright Term Extension?

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By: Kim Massey

Member, American Journal of Trial Advocacy


The first of January is generally celebrated as Public Domain Day, and in 2019, Public Domain Day was once again celebrated as works from 1923 entered the public domain[1] and became “free as the air to common use.”[2] Public Domain Day is when the copyright term for works—such as books, films, and musical compositions—expires.[3] However, in 1998, Congress extended the copyright term for future works and works that still enjoyed copyright protections by an additional twenty years.[4] This act—the Sonny Bono Copyright Term Extension Act—virtually prevented any works from entering the public domain for the last twenty years.[5] While the Sonny Bono Copyright Term Extension Act (CTEA) was challenged as unconstitutional, the Supreme Court upheld the constitutionality of the CTEA.[6]

Brief History of Copyright Terms

One of Congress’ enumerated powers granted by the Constitution is the power to grant copyrights.[7] With this power, the first Congress passed the Copyright Act of 1790 which created a fourteen-year term with the option to renew for another fourteen years if the author was still living.[8] About forty years later, Congress extended the copyright term to twenty-eight years from fourteen, but leaving the renewal at fourteen years.[9] The next copyright term extension came in 1909 after authors lobbied to have the term extended, claiming that having their works lose copyright protections during their lives was unfair.[10] Thus, the Copyright Act of 1909 was enacted.[11] The Copyright Act of 1909 extended copyright protections for a total of fifty-six years, leaving the original term for twenty-eight years, but now extending the renewal term to twenty-eight years.[12] In 1976, in response to the developing technology of the twentieth century, Congress passed the most expansive change to copyright law yet.[13] The Copyright Act of 1976 extended the copyright term to last the author’s lifespan plus an additional fifty years after the author’s death.[14] The next revision of the copyright term would come in 1998 with the CTEA, which added an additional twenty years of copyright protection.[15] This meant that authors would enjoy copyright protections for their entire life, plus an additional seventy years after their death.[16] However, the CTEA did not only apply to future works; the CTEA applied retroactively to any already existing works not yet in the public domain, which was the base of the constitutional challenge to the CTEA.[17]

Eldred v. Ashcroft

In 2003, the Supreme Court granted certiorari in Eldred v. Ashcroft[18] to decide whether Congress exceeded its power under the Copyright Clause of the Constitution.[19] The Petitioners’ products built on other works with expired copyright terms that were in the public domain.[20] The Petitioners argued that because the Copyright Clause states that authors may enjoy protections “for limited Times,” Congress exceeded its power when it extended the copyright term for existing works.[21] The Court held that “for limited Times” did not prevent Congress from extending the copyright term of existing works and looked to previous copyright term extensions by Congress[22] and instances when Congress extended patent terms.[23] The Court also gave deference to Congress when deciding the rationality of the extension.[24] Thus, the Court found the CTEA was constitutional and affirmed the lower courts.[25]

Justice Breyer dissented from the majority opinion arguing that the CTEA was unconstitutional because this extension “ma[de] the copyright term not limited, but virtually perpetual,” and only inhibited “the progress of ‘Science’—by which word the Framers meant learning or knowledge,” contrary to the Copyright Clause.[26] Justice Breyer further argued that the CTEA did not benefit the authors of works with the additional twenty years of protection, but instead benefited “their heirs, estates, or corporate successors.”[27] He stated the purpose of the Copyright Clause and a copyright term “for limited Times” was so that the recipients of an author’s work would “not be permanently deprived of the fruits of an artist’s labors.”[28] The Copyright Clause should incentivize authors to create, but in the end, the Copyright Clause is to benefit society by promoting the progress of science and art.[29]


The big question now is whether Congress will extend the copyright term again and if so, by how much.[30] The Senate is now considering a new bill—”Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” or the “CLASSICS Act.”[31] The CLASSICS Act would provide potentially 144 years of protection for musical recordings recorded before 1972.[32] Whether this bill will pass the Senate and then whether it will be challenged are both yet to be seen. If Congress enacts another Copyright Act to extend copyright terms, how the Court would rule on the constitutionality of another extension is undetermined. The Court may deliver another Eldred opinion, giving deference to Congress and its decision to extend the copyright term again.[33] However, the Court’s decision was not unanimous in Eldred, with Justices Stevens[34] and Breyer dissenting.[35] This lack of unity could indicate that the Court would come to a different conclusion today if deciding a new challenge to copyright term extensions. The future of copyright terms is unknown, but with the current landscape of intellectual property, some sort of legislation likely will not be proposed.[36]

[1] See Public Domain Day 2019, Ctr. for Study Pub. Domain (last visited Feb. 7, 2019), https://law.duke.edu/cspd/publicdomainday/2019/ (“For the first time in over 20 years, on January 1, 2019, published works will enter the US public domain.”).

[2] Int’l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting).

[3] See Public Domain Frequently Asked Questions, Teaching Copyright (last visited Feb. 7, 2019), https://www.teachingcopyright.org/handout/public-domain-faq.html (“Public domain works are not restricted by copyright and do not require a license or fee to use.”); Public Domain Day—Frequently Asked Questions, Ctr. for Study Pub. Domain (last visited Feb. 7, 2019), https://law.duke.edu/cspd/publicdomainday/2018/faqs/ (providing a list of frequently asked questions relating to Public Domain Day).

[4] Sonny Bono Copyright Term Extension Act, 17 U.S.C. §§ 108, 203, 301 – 304 (1998); see H.R. Rep. No. 105-452, at 3 (1998) (“[T]he ‘Copyright Term Extension Act,’ will extend the term of copyright protection in all copyrighted works that have not fallen into the public domain by twenty years”); S. Rep. No. 104-315, at 3 (1996) (“The bill accomplishes these goals [of ensuring adequate copyright protection] by extending the current U.S. copyright term for an additional 20 years.”).

[5] 17 U.S.C. §§ 108, 203, 301 – 304; Public Domain Frequently Asked Questions, Teaching Copyright, https://www.teachingcopyright.org/handout/public-domain-faq.html (The Sonny Bono Copyright Term Extension Act neither prevents authors from assigning their works to the public domain, nor does it give copyright protections to works that are not copyrightable by nature which go into the public domain no matter what once created.).

[6] See Eldred v. Ashcroft, 537 U.S. 186, 222 (2003) (holding that the Copyright Clause allows Congress to decide what intellectual property right regimes to enact).

[7]  U.S. Const. art. I, § 8, cl. 8 (“The Congress shall have Power . . . [t]o 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.”).

[8] Copyright Act of 1790, ch. 15, §1, 1 Stat. 124 (1790).

[9] Act of Feb. 3, 1831, ch. 16, §§ 1 – 2, 4 Stat. 436 (1831).

[10] Jenny L. Dixon, The Copyright Term Extension Act: Is Life Plus Seventy Too Much?, 18 Hastings Comm. & Ent. L. J. 945, 957 (1996).

[11] Act of Mar. 4, 1909, ch. 320, 35 Stat. 1075 (1909).

[12] Id.

[13] See Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. §§ 101 – 808 (1994 & Supp. 1997)).

[14] Id.

[15] 17 U.S.C. §§ 108, 203, 301 – 304.

[16] Id. at § 302. (Works of corporate authorship now enjoy a ninety-five year copyright term.).

[17] Id. at § 303; see generally Eldred v. Ashcroft, 537 U.S. 186, 192 (2003) (“This case concerns the authority the Constitution assigns to Congress to prescribe the duration of copyrights.”).

[18] 537 U.S. 186 (2003).

[19] U.S. Const. art. I, § 8, cl. 8; Eldred, 537 U.S. at 192 – 93 (The Petitioners also argued that the CTEA violated the First Amendment.).

[20] Eldred, 537 U.S. at 193.

[21] Id. (The Petitioners did not argue that Congress exceeded its power by extending the copyright term for future works.).

[22] Id. at 204.

[23] Id. at 201 – 03 (The Copyright Clause also covers patents.).

[24] Id. at 204 – 07.

[25] Id. at 221 – 22.

[26] Eldred, 537 U.S. at 243 (Breyer, J., dissenting).

[27] Id.

[28] Id. at 245 – 46 (quoting Stewart v. Abend, 495 U.S. 207, 228 (1990)).

[29] Id. at 247.

[30] See 1 Howard B. Abrams & Tyler T. Ochoa, The Law of Copyright § 1:19 (2018) (analyzing the Court’s decision in Eldred to predict whether another copyright term extension act will be proposed and passed).

[31] S. 2393, 115th Cong. (2018).

[32] Id.

[33] See Eldred, 537 U.S. at 204 – 07.

[34] See id. at 242 (Stevens, J., dissenting) (claiming the majority’s decision ignores “the central purpose of the Copyright/Patent Clause”).

[35] See id. at 267 (Breyer, J., dissenting) (claiming the CTEA falls outside of Congress’ legislative power).

[36] See Timothy Vollmer, Is Copyright Term Extension Finally Done?, Creative Commons, (Jan. 15, 2018), https://creativecommons.org/2018/01/15/copyright-term-extension-finally-done/ (noting that the internet has changed has copyright issues are being handled in politics); Timothy B. Lee, Why Mickey Mouse’s 1998 Copyright Extension Probably Won’t Happen Again, ArsTechnica, (Jan. 8, 2018, 7:00 AM), https://arstechnica.com/tech-policy/2018/01/hollywood-says-its-not-planning-another-copyright-extension-push/ (“[T]here seemed to be universal agreement that another copyright extension was unlikely to be on the agenda this year.”).

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