Albany Law Review, Vol. 70, No. 4 (2007), pp. 1255-1295


The United States Supreme Court upheld the Copyright Term Extension Act of 1998 (CTEA) in Eldred v. Ashcroft. The Court ruled that Congress had not exceeded its authority under the Copyright Clause by extending the copyright term twenty years and applying this extension retroactively to existing copyrighted works that otherwise would have entered the public domain at the end of their current, nonextended terms. The majority found a rational basis for CTEA and showed great deference to the authority of Congress to set policy that, in its judgment, effectuates the aims of the Copyright Clause. Although this deference to Congress' judgment is not out of the ordinary, the degree of deference that permeates the majority opinion in Eldred fuels the debate regarding congressional authority under the Copyright Clause and other provisions of the Constitution to alter fundamental principles of United States' intellectual property policy announced in cases like Sears, Roebuck & Co. v. Stiffel Co.; Compco Corp. v. Day-Brite Lighting, Inc.; Graham v. John Deere Co. of Kansas City; Bonito Boats, Inc. v. Thunder Craft Boats, Inc.; TrafFix Devices, Inc. v. Marketing Displays, Inc.; and Dastar Corp. v. Twentieth Century Fox Film Corp.

In these important decisions the Court addressed the public's right to use inventions and works of authorship that are in the public domain because of an expired or invalid patent, or an expired copyright. It struck down attempts to restrict the copying of public domain works under state unfair competition law and Lanham Act theories of relief. Notwithstanding Congress' authority to enact intellectual property laws, like the Lanham Act, that are beyond the scope of the Copyright Clause, the Supreme Court has been troubled by interpretations of trademark and unfair competition law that affords patent-like or copyright-like protection evading the “limited times” restriction on patents and copyrights imposed by the Constitution, and thereby attempts to grant proprietary rights over materials in the public domain. These decisions underscore the Supreme Court's statement in Bonito Boats that the Copyright Clause serves as a limitation on congressional authority as well as a grant of power to the legislative branch. They are consistent with the Court's historic copyright jurisprudence that emphasizes the public purposes embodied in the Copyright Clause instead of focusing on the proprietary interests of authors and/or copyright owners.

On the surface, Eldred is not at odds with decisions like Dastar, WalMart, and TrafFix because Congress passed CTEA under its Copyright Clause authority and CTEA did not remove works from the public domain. Those decisions involved interpretation of the Lanham Act, a statute enacted by Congress under its Commerce Clause authority. Dastar even cites Eldred for the proposition that Congress cannot create a species of perpetual patent or copyright. Still, given the Supreme Court's expansive statements in Eldred about the authority of Congress under the Copyright Clause coupled with its treatment of several of its previous statements on intellectual property policy as well as its general reluctance to strike down legislation, it is appropriate to ask whether there are any limits on the Court's deference to Congress in setting intellectual property policy under the Copyright Clause. Does Congress enjoy a carte blanche to legislate on intellectual property matters as it deems appropriate? Has the Court backed away from its posture regarding copyright law expressed in the Feist decision to return to a relationship with Congress on copyright law that is deferential to the point of servility?

This article discusses these post-Eldred decisions, the expansive authority of Congress under the Copyright Clause, the meaning of the Clause's limitations in the face of the Court's deference to congressional authority, and the significant risk of encroachment on the public domain resulting from Congress' exercise of power under the Copyright Clause. Recent decisions, applying Eldred to uphold challenged legislation, show that it may not be necessary for Congress to turn to its authority under the Commerce Clause or the Treaty Power in order to enact legislation that arguably escapes the limitations in the Copyright Clause. Given Congress' exercise of general legislative powers, the Court's deference to Congress' judgment in exercising its considerable power under the Copyright Clause as well as its historic reluctance to strike down intellectual property legislation, the Clause's limitations on congressional authority could become meaningless and this puts the public domain at risk.