WHAT IS THE COPYRIGHT DURATION, ANYWAY?

On February 16, 2001, the United States Court of Appeals for the District
of Columbia Circuit, in a split panel, rebuffed a challenge to the constitutionality of that part of the Copyright Term Extension Act of 1998  
("CTEA") which extended the term of copyright protection for an additional 20 years.  The decision, dated February 16, 2001 in Eldred v. Reno, discussed
how "limited" the constitutional mandate of a copyright duration of "limited Times" is, or should be.

The majority opinion framed the issue as "whether the First Amendment or the Copyright Clause of the Constitution of the United States constrains the Congress from extending for a period of years the duration of copyrights, both those already extant and those yet to come."

An analysis of copyright begins with Article I, Section 8 of the United States Constitution, which authorizes Congress "To 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."

The Court traced the history of legislative enactments and extensions of copyright protection to support its conclusion. Thus, an initial term of 14-
years plus a 14 year renewal term was enacted by the very first Congress in 1790, which  was then extended to 42 years in 1831 (28-year initial term and
the 14-year extension), and  then to 56 years in 1909 (28 years plus a 28-year extension).  Finally, the 1976 Copyright Act altered the way the term of
copyright was to be computed in order to conform to international practice, so that the  copyright duration became the life of the author plus 50 years,
or if no identifiable author or if the author was an organization, the earlier of 75 years from publication or 100 years from creation.

The CTEA added 20 years to the term of each copyright duration to ostensibly conform to the European Union, which has the longer term.  
Plaintiffs claimed that the CTEA is beyond the power of the Congress and therefore unconstitutional.

The main contention of plaintiffs dealt with the constitutional requirement, set forth in  Article I, Section 8 , that copyright protection is to endure only for "limited Times."  The majority  of the Court held that a copyright  term which is a "limited Time" may be extended by Congress for another "limited Time," without violating the Constitution. It referred back to the extensions of copyright duration granted by Congress  in 1831, 1909 and 1976.  The only limitation on this power of Congress, said the Court, is judicial review " for rationality."

There  was a  dissenting opinion which would have held the  CTEA unconstitutional because it claims that "extending existing copyrights is not
promoting useful arts, nor is it securing exclusivity for a limited Time." The dissent stressed  the possibility of successive Congresses conferring a
perpetual copyright by an unlimited number of extensions of "limited Times." The majority found this argument to be unpersuasive, in part because of  the
relatively modest amount of time involved in the 20-year extension.

Although the Court upheld the constitutionality of the 20-year extension of copyright,  it did not resolve the issue of how "limited" the constitutional mandate of a copyright duration of "limited Times" is, or should be. All we are told is that "forever" is too long, but 20 years is not.

It will be up to a future Congress, and perhaps a future court, to further define the " limited" aspect of "limited Times." In the meantime, life plus 70 years, or 95 years, would presumably seem sufficient - at least for another 20 years!