Congressional Authority Over Intellectual Property Policy After Eldred v. Ashcroft: Deference, Empty Limitations and Risks to the Public Domain

This Faculty Working Paper has been updated and posted within the Faculty Scholarly Works Series. It is currently available here.


It is appropriate to ask whether there are any meaningful limits on the Supreme Court's deference to Congress in setting intellectual property policy after Eldred v. Ashcroft given the Court's statements about the authority of Congress under the Copyright Clause, its treatment of several prior statements on intellectual property policy and the Court's general reluctance to strike down legislation. Does Congress enjoy a carte blanche to legislate on intellectual property matters? Has the Court backed away from its posture regarding copyright law expressed in Feist to return to a relationship with Congress on copyright policy that is deferential to the point of servility?

The answer to these questions might be "yes." The Supreme Court's deference to Congress coupled with its reliance on the unbroken history of congressional practices granting term extensions and statements regarding differences between the patent and copyright monopolies have been of critical importance in recent decisions upholding legislation that provides for the restoration of copyright protection for certain works by foreign authors that had entered the public domain. Another court, relying heavily on Eldred, upheld the Copyright Renewal Act and the Berne Convention Implementation Act as well as CTEA. Appropriate deference to Congress also played an important role in several decisions interpreting anti-bootlegging legislation. The lower courts are split on whether this statute violates the Copyright Clause's "limited times" and "writings" limitations, and over whether it can be upheld under the Commerce Clause or the Treaty Power.

This article discusses several 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 congress, and the significant risk of encroachment on the public domain resulting from Congress' exercise of its power under the Copyright Clause. The post-Eldred decisions show that it may not be necessary for Congress to turn to the Commerce Clause or the Treaty Power in order to enact legislation that avoids limitations in the Copyright Clause. Given Congress' exercise of general legislative powers, the Court's deference to Congress' judgment in exercising its power under the Copyright Clause and its historic reluctance to strike down intellectual property legislation, the clause's limitations on congressional authority are becoming meaningless and this puts the public domain at risk.