USA / COPYRIGHT / PUBLIC DOMAIN

Not in my Library: Eldred v Ashcroft and the Demise of the Public Domain

Nadine Farid

Tulane Journal of Technology and Intellectual Property, Volume 5, Spring 2003

Essentially, this article is concerned with the background to and importance of the US Supreme Court's ruling in Eldred v Ashcroft earlier this year, and above all with the implications of the ruling for the concept of the public domain in copyright law. The author sketches the history of the concept: the initial codification of copyright ownership "for a limited time" (originally fourteen years, subject to renewal for a further fourteen years if the author was still alive), the extension both of the scope and of the duration of protection and the progressive increase in protection under the 1904 Act, the 1976 Act, the Digital Millennium Copyright Act and Copyright Term Extension Act, both of 1998. The constitutionality of the latter was the subject of the litigation before the Supreme Court/ Two basic questions arose: first, whether the lower court had erred in holding that Congress had the power under the copyright clause of the constitution to extend retrospectively the term of existing copyrights; and, secondly, whether "a law that extends the term of existing and future copyrights is categorically immune from challenge under the First Amendment" (on free speech). The Supreme Court decided these issues by a majority of seven to two in favour of copyright protection. The majority view on the fist question was that retroactive extensions had been approved by Congress in the past and that extensions were in line with those in Europe, though, as the author says, "the fact that the European Community passes a law does not mean that the United States must follow suit". So far as the First Amendment argument was concerned, the majority opinion was that the statute did not rise to the level of First Amendment scrutiny: the copyright clause, and hence the legislation made under it, were not limiting free speech. The minority view was that the aim of the Constitution, in seeking to promote the progress of science and the useful arts, was not only to protect innovations but also to guarantee " will enter the public domain as soon as the period of exclusivity expires" and that Congress should not "take from the public domain in order to make the exclusive monopoly held by the inventor or author". The author criticizes the Supreme Court's decision, arguing that the balance between copyright ownership and the public domain has been upset - the former having "received something for nothing" and the latter being seriously diminished. The copyright monopoly was excessively long: those benefiting, both economically and culturally, from the existence of the public domain were seriously harmed as a result. The author considers that there is a case for a copyright fee, analogous to a patent or trade mark fee, so that failure to pay should result in transfer to the public domain. She also quotes with sympathy, if not approval, an article in The Economist, proposing a radical rethink of copyright, including a reduction of the period of protection to the original fourteen years. [20102]