(Bench Opinion) OCTOBER TERM, 2002 1
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
ELDRED ET AL. v. ASHCROFT, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
No. 01–618. Argued October 9, 2002—Decided January 15, 2003
The Copyright and Patent Clause, U. S. Const., Art. I, §8, cl. 8, provides
as to copyrights: “Congress shall have Power . . . [t]o promote the Progress
of Science . . . by securing [to Authors] for limited Times . . . the exclusive
Right to their . . . Writings.” In the 1998 Copyright Term Extension Act
(CTEA), Congress enlarged the duration of copy-rights by 20 years: Under the
1976 Copyright Act (1976 Act), copy-right protection generally lasted from a
work’s creation until 50 years after the author’s death; under the
CTEA, most copyrights now run from creation until 70 years after the author’s
death, 17 U. S. C. §302(a). As in the case of prior copyright extensions,
principally in 1831, 1909, and 1976, Congress provided for application of the
en-larged terms to existing and future copyrights alike.
Petitioners, whose products or services build on copyrighted works that have
gone into the public domain, brought this suit seeking a de-termination that
the CTEA fails constitutional review under both the Copyright Clause’s “limited
Times” prescription and the First Amendment’s free speech guarantee.
Petitioners do not challenge the CTEA’s “life-plus-70-years” time
span itself. They maintain that Congress went awry not with respect to newly
created works, but in enlarging the term for published works with existing copyrights.
The “limited Tim[e]” in effect when a copyright is secured, petitioners
urge, becomes the constitutional boundary, a clear line beyond the power of Congress
to extend. As to the First Amendment, petitioners contend that the CTEA is a
content-neutral regulation of speech that fails inspection under the heightened
judicial scrutiny appropriate for such regulations. The District Court entered
judgment on the pleadings for the Attorney General (respondent here), holding
that the CTEA does not violate the Copyright Clause’s “limited Times” re-
ELDRED v. ASHCROFT
striction because the CTEA’s terms, though longer than the 1976 Act’s
terms, are still limited, not perpetual, and therefore fit within Congress’ discretion.
The court also held that there are no First Amendment rights to use the copyrighted
works of others. The Dis-trict of Columbia Circuit affirmed. In that court’s
unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U. S. 539, foreclosed petitioners’ First Amendment challenge to the CTEA.
The appeals court reasoned that copyright does not impermissibly restrict free
speech, for it grants the author an exclusive right only to the spe-cific form
of expression; it does not shield any idea or fact contained in the copyrighted
work, and it allows for “fair use” even of the expression itself.
A majority of the court also rejected petitioners’ Copyright Clause claim.
The court ruled that Circuit precedent precluded peti-tioners’ plea for
interpretation of the “limited Times” prescription with a view to
the Clause’s preambular statement of purpose: “To promote the Progress
of Science.” The court found nothing in the constitutional text or history
to suggest that a term of years for a copyright is not a “limited Time” if
it may later be extended for an-other “limited Time.” Recounting
that the First Congress made the 1790 Copyright Act applicable to existing copyrights
arising under state copyright laws, the court held that that construction by
con-temporaries of the Constitution’s formation merited almost conclu-sive
weight under Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57. As early
as McClurg v. Kingsland, 1 How. 202, the Court of Ap-peals recognized, this Court
made it plain that the Copyright Clause permits Congress to amplify an existing
patent’s terms. The court added that this Court has been similarly deferential
to Congress’ judg-ment regarding copyright. E.g., Sony Corp. of America
v. Universal City Studios, Inc., 464 U. S. 417. Concerning petitioners’ assertion
that Congress could evade the limitation on its authority by stringing to-gether
an unlimited number of “limited Times,” the court stated that such
legislative misbehavior clearly was not before it. Rather, the court emphasized,
the CTEA matched the baseline term for United States copyrights with the European
Union term in order to meet contemporary circumstances.
Held: In placing existing and future copyrights in parity in the CTEA,
Congress acted within its authority and did not transgress constitu-
tional limitations. Pp. 7–31.
1. The CTEA’s extension of existing copyrights does not exceed Congress’ power
under the Copyright Clause. Pp. 7–28.
(a) Guided by text, history, and precedent, this Court cannot agree with petitioners
that extending the duration of existing copy-rights is categorically beyond
Congress’ Copyright
Clause authority. Although conceding that the CTEA’s baseline term of
life plus 70
Cite as: 537 U. S. ____ (2003) 3
years qualifies as a “limited Tim[e]” as applied to future copyrights,
petitioners contend that existing copyrights extended to endure for that same
term are not “limited.” In petitioners’ view, a time pre-scription,
once set, becomes forever “fixed” or “inalterable.” The
word “limited,” however, does not convey a meaning so constricted.
At the time of the Framing, “limited” meant what it means today:
confined within certain bounds, restrained, or circumscribed. Thus under-stood,
a time span appropriately “limited” as applied to future copy-rights
does not automatically cease to be “limited” when applied to existing
copyrights. To comprehend the scope of Congress’ Copyright Clause power, “a
page of history is worth a volume of logic.” New York Trust Co. v. Eisner,
256 U. S. 345, 349. History reveals an un-broken congressional practice of granting
to authors of works with existing copyrights the benefit of term extensions so
that all under copyright protection will be governed evenhandedly under the same
regime. Moreover, because the Clause empowering Congress to con-fer copyrights
also authorizes patents, the Court’s inquiry is signifi-cantly informed
by the fact that early Congresses extended the dura-tion of numerous individual
patents as well as copyrights. Lower courts saw no “limited Times” impediment
to such extensions. Fur-ther, although this Court never before has had occasion
to decide whether extending existing copyrights complies with the “limited
Times” prescription, the Court has found no constitutional barrier to the
legislative expansion of existing patents. See, e.g., McClurg, 1 How., at 206.
Congress’ consistent historical practice reflects a judgment that an author
who sold his work a week before should not be placed in a worse situation than
the author who sold his work the day after enactment of a copyright extension.
The CTEA follows this historical practice by keeping the 1976 Act’s duration
provisions largely in place and simply adding 20 years to each of them.
The CTEA is a rational exercise of the legislative authority con-ferred by
the Copyright Clause. On this point, the Court defers sub-stantially to Congress.
Sony, 464 U. S., at 429. The CTEA reflects judgments of a kind Congress typically
makes, judgments the Court cannot dismiss as outside the Legislature’s
domain. A key factor in the CTEA’s passage was a 1993 European Union
(EU) directive in-structing EU members to establish a baseline copyright term
of life
plus 70 years and to deny this longer term to the works of any non-EU country
whose laws did not secure the same extended term. By extending the baseline
United States copyright term, Congress sought to ensure that American authors
would
receive the same copyright protection in Europe as their European counterparts.
The CTEA may also provide greater incentive for American and other authors
to create and disseminate their work in the United States.
ELDRED v. ASHCROFT
Additionally, Congress passed the CTEA in light of demographic, economic, and
technological changes, and rationally credited projec-tions that longer terms
would encourage copyright holders to invest in the restoration and public distribution
of their works. Pp. 7–17.
(b) Petitioners’ Copyright Clause arguments, which rely on several novel
readings of the Clause, are unpersuasive. Pp. 17–28.
(1) Nothing before this Court warrants construction of the CTEA’s 20-year
term extension as a congressional attempt to evade or override the “limited
Times” constraint. Critically, petitioners fail to show how the CTEA crosses
a constitutionally significant thresh-old with respect to “limited Times” that
the 1831, 1909, and 1976 Acts did not. Those earlier Acts did not create perpetual
copyrights, and neither does the CTEA. Pp. 18–19.
(2) Petitioners’ dominant series of arguments, premised on the proposition
that Congress may not extend an existing copyright ab-sent new consideration
from the author, are unavailing. The first such contention, that the CTEA’s
extension of existing copyrights overlooks the requirement of “originality,” incorrectly
relies on Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S.
340, 345, 359. That case did not touch on the duration of copyright protection.
Rather, it addressed only the core question of copyrightability. Ex-plaining
the originality requirement, Feist trained on the Copyright Clause words “Authors” and “Writings,” id.,
at 346–347, and did not construe the “limited Times” prescription,
as to which the originality requirement has no bearing. Also unavailing is petitioners’ second
argument, that the CTEA’s extension of existing copyrights fails to “promote
the Progress of Science” because it does not stimulate the creation of
new works, but merely adds value to works already cre-ated. The justifications
that motivated Congress to enact the CTEA, set forth supra, provide a rational
basis for concluding that the CTEA “promote[s] the Progress of Science.” Moreover,
Congress’ unbroken practice since the founding generation of applying new
definitions or adjustments of the copyright term to both future works and existing
works overwhelms petitioners’ argument. Also rejected is petitioners’ third
contention, that the CTEA’s extension of existing copyrights without demanding
additional consideration ignores copyright’s quid pro quo, whereby Congress
grants the author of an original work an “exclusive Right” for a “limited
Tim[e]” in exchange for a dedication to the public thereafter. Given Congress’ consistent
placement of ex-isting copyright holders in parity with future holders, the author
of a work created in the last 170 years would reasonably comprehend, as the protection
offered her, a copyright not only for the time in place when protection is gained,
but also for any renewal or extension leg-islated during that time. Sears, Roebuck & Co.
v. Stiffel Co., 376
Syllabus
Cite as: 537 U. S. ____ (2003) 5
U. S. 25, 229, and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.
S. 141, 146, both of which involved the federal patent regime, are not to the
contrary,
since neither concerned the extension of a pat-ent’s duration nor suggested
that such an extension might be consti-tutionally infirm. Furthermore, given
crucial distinctions between patents and copyrights, one cannot extract from
language in the Court’s patent decisions—language not trained on
a grant’s dura-tion—genuine support for petitioners’ quid pro
quo argument. Pat-ents and copyrights do not entail the same exchange, since
immedi-ate disclosure is not the objective of, but is exacted from, the patentee,
whereas disclosure is the desired objective of the author seeking copyright protection.
Moreover, while copyright gives the holder no monopoly on any knowledge, fact,
or idea, the grant of a patent pre-vents full use by others of the inventor’s
knowledge. Pp. 20–27.
(3) The “congruence and proportionality” standard of review de-scribed
in cases evaluating exercises of Congress’ power under §5 of the Fourteenth
Amendment has never been applied outside the §5 context. It does not hold
sway for judicial review of legislation en-acted, as copyright laws are, pursuant
to Article I authorization. Sec-tion 5 authorizes Congress to “enforce” commands
contained in and incorporated into the Fourteenth Amendment. The Copyright Clause,
in contrast, empowers Congress to define the scope of the substantive right.
See Sony, 464 U. S., at 429. Judicial deference to such congressional definition
is “but a corollary to the grant to Con-gress of any Article I power.” Graham
v. John Deere Co. of Kansas City, 383 U. S. 1, 6. It would be no more appropriate
for this Court to subject the CTEA to “congruence and proportionality” review
than it would be to hold the Act unconstitutional per se. Pp. 27–28.
2. The CTEA’s extension of existing and future copyrights does not violate
the First Amendment. That Amendment and the Copyright Clause were adopted close
in time. This proximity indicates the Framers’ view that copyright’s
limited monopolies are compatible with free speech principles. In addition, copyright
law contains built-in First Amendment accommodations. See Harper & Row, 471
U. S., at 560. First, 17 U. S. C. §102(b), which makes only expression,
not ideas, eligible for copyright protection, strikes a definitional balance
between the First Amendment and copyright law by permitting free communication
of facts while still protecting an author’s expression. Harper & Row,
471 U. S., at 556. Second, the “fair use” defense codi-fied at §107
allows the public to use not only facts and ideas con-tained in a copyrighted
work, but also expression itself for limited purposes. “Fair use” thereby
affords considerable latitude for schol-arship and comment, id., at 560, and
even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569. The
CTEA itself supplements
ELDRED v. ASHCROFT
these traditional First Amendment safeguards in two prescrip-tions: The first
allows libraries and similar institutions to reproduce and distribute copies
of certain published works for scholarly pur-poses during the last 20 years
of any copyright term, if the work is not already being exploited commercially
and
further copies are un-available at a reasonable price, §108(h); the second
exempts small businesses from having to pay performance royalties on music
played from licensed radio, television, and similar facilities, §110(5)(B).
Finally, petitioners’ reliance on Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 641, is misplaced. Turner Broadcasting invali-dated a statute
requiring
cable television operators to carry and transmit broadcast stations through
their proprietary cable systems. The CTEA, in contrast, does not oblige anyone
to reproduce
another’s speech against the carrier’s will. Instead, it protects
authors’ original expression from unrestricted exploitation. The First
Amendment se-curely protects the freedom to make—or decline to make—one’s
own speech; it bears less heavily when speakers assert the right to make other
people’s speeches. When, as in this case, Congress has not al-tered the
traditional contours of copyright protection, further First Amendment scrutiny
is unnecessary. See, e.g., Harper & Row, 471 U. S., at 560. Pp. 28–31.
239 F. 3d 372, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J.,
and O’CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS,
J., and BREYER, J., filed dissenting opinions.