PTC FORUM: Online Journal of the Patent, Trademark and Copyright Research Foundation

USA / COPYRIGHT / EXTENSION

"To promote the Progress of Science": The Copyright Clause and Congress's Power to extend Copyrights

Orrin G Hatch and Thomas R Lee

Harvard Journal of Law and Technology, Vol 16 No 1, Fall 2002

In this article the authors challenge the views expressed by the petitioners in the case at present before the United States Supreme Court, Eldred v Ashcroft, as well as the views of a number of academics, to the effect that the Copyright Term Extension Act of 1998 is unconstitutional. Under the United States Constitution, Congress has the power to promote the progress of science by (inter alia) the protection of copyrights; but the petitioners and their academic supporters claim that copyright extension cannot fulfil the purpose of the Constitution, because "the incentive is being given for work that has already been produced". The authors of the article contend that, on the contrary, progress in the sense in which it is referred to in the Constitution encompasses an improvement in the dissemination of works already in existence. The cite the opinion of the Register of Copyrights in a hearing held before the Act was passed, to the effect that, if the remaining terms of the copyright is insufficient to allow the investor time not only to recover but also to earn a reasonable return on his investment, the work in question will not be published or otherwise disseminated to consumers. The authors review the "prevailing wisdom", that is, the academic literature on the progress of science, and examine in some detail the original understanding of the copyright clause. They make the point that "progress" has a wider meaning than some modern legal commentators suggest; and they assert that this wider meaning was reflected in the original Copyright Act of 1790 and in subsequent laws extending the earlier periods of protection from fourteen years upwards. There is additional justification, in the authors' view, for the extension enacted in 1998: namely, the requirements of distribution in the digital age and specifically for investment in new technology to maximize the dissemination of older works. They quote with approval the view that many works may be more readily available to the public, and in better and more usable condition, when they are still protected by copyright. They go further and express the belief that extensions of copyright not only encourage dissemination but also stimulate creativity: they quote the former US Commissioner of Patents and Trademarks, Bruce A Lehmann, who considered that the additional twenty years would result in greater financial rewards for the authors of their works, which would in turn encourage those authors to create more new works for the public to enjoy. The authors conclude that, since the Copyright Term Extension Act encourages the dissemination of existing works, and even the creation of new works, it should be upheld as a constitutional exercise of Congress's copyright power. [20085]

Note: in the same issue of the Harvard Journal, Marvin Ammori puts a contrary view forward in "The Uneasy Case for Copyright Extension".