Private Rights, Public Uses, and the Future of the Copyright Clause

• Publication year: 2021

80 Nebraska L. Rev. 69. Private Rights, Public Uses, and the Future of the Copyright Clause

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Private Rights, Public Uses, and the Future of the Copyright Clause

Richard B. Graves III(fn*)

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . 64 R
II. The Purpose and Nature of the Copyright Clause. . . . . . . . 66 R
III. Two Centuries of Rightsholders' Advances . . . . . . . . . . 68 R
IV. The Exclusive Right of Authors at the End of the 20th
Century . .. . . . . . . . . . . . . . . . . . . . . . . . . 69 R
A. Congress's Discretion . . . . . . . . . . . . . . . . . . 69 R
B. The Fair Use Doctrine . . . . . . . . . . . . . . . . . . 69 R
C. Temporary Copyright and the Public Domain . . . . . . . . 75 R
V. The Future of Digital Copying . . . . . . . . . . . . . . . . 80 R
A. Digital Media and the Copyright Industries . . . . . . . . 80 R
B. Recent Controversies in Digital Copying . . . . . . . . . 84 R
1. Mymp3.com . . . . . . . . . . . . . . . . . . . . . . . 84 R
2. Napster and Gnutella . . . . . . . . . . . . . . . . . 85 R
3. DeCSS . . . . . . . . . . . . . . . . . . . . . . . . . 88 R
C. Technological Negation of Fair Use Copying . . . . . . . . 89 R
VI. Millennial Changes in Copyright Law . . . . . . . . . . . . 91 R
VII. The Limits of Congress's Power Under the Copyright
Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 R
A. "To Promote" as an Interpretive Guide . . . . . . . . . . 93 R
B. "Exclusive Right" Versus Noncompeting Uses . . . . . . . . 95 R
C. "For Limited Times" Versus Creeping Perpetuity . . . . . . 99 R
VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 102 R

I. INTRODUCTION

The Intellectual Property Clause of the U.S. Constitution grants Congress the power "[t]o promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."(fn1) Pursuant to this power, Congress has enacted a system of copyright protec-

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tion designed to motivate authors(fn2) to produce new works.(fn3) In keeping with the essential purpose of the Copyright Clause,(fn4) that system has, for more than two centuries, maintained a balance between the incentives of authors to produce works, and the interests of the public in having the greatest possible access to those works.(fn5)

Recently, however, Congress has enacted two laws that shift the balance of the copyright system decisively in favor of rightsholders.(fn6) The first was partly motivated by recent advances in technology that allow any visual(fn7) or auditory(fn8) copyrighted work to be copied and retransmitted over the Internet without significant cost or noticeable loss of fidelity.(fn9) Congress's answer to the new ease of copying afforded by this technology has been to provide for civil and criminal penalties against persons who circumvent technological barriers erected by rightsholders against the copying of digital works.(fn10) In the increasingly digitized world of the near future, this will have the effect of outlawing many previously legal public uses of copyrighted materials.

The second law extended the term of copyright from the life of the author plus fifty years to life plus seventy.(fn11) This will have the effect of keeping currently protected works out of the public domain for at least another twenty years.(fn12) This increase will have no meaningful effect upon authors' incentives to produce new works.(fn13) Moreover, coupled with the other increases in the copyright term over the past century, this new extension raises the possibility that the term of copyright will continue to increase perpetually, thus preventing free public enjoyment of any work produced after the 1920s.(fn14)

In sum, Congress's most recent copyright legislation is inconsistent with the Copyright Clause, in that it expands the scope of authors' "exclusive Right" beyond its proper bounds, and expands the duration of that right beyond any reasonable interpretation of the term "for

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limited Times." Admittedly, it is possible that other provisions of the Constitution, such as the Commerce Clause(fn15) or the treaty power,(fn16) might expand the scope of the Copyright Clause in this respect. Moreover, non-constitutional bodies of law may have a significant impact on these issues.(fn17)

Nonetheless, any attempt to justify the judicial invalidation of Acts of Congress affecting copyright must begin with an examination of those acts in the context of the Copyright Clause. This Article undertakes such a beginning, and is therefore restricted to that context.

II. THE PURPOSE AND NATURE OF THE COPYRIGHT CLAUSE

The Copyright Clause owes its origin to two strong beliefs among the Framers of the Constitution. The first was that uniform, nationwide copyright protection was essential for the generation and dissemination of new works.(fn18) In the words of James Madison: "The utility of this power will scarcely be questioned . . . . The States cannot separately make effectual provision for either [copyrights or patents], and most of them have anticipated the decision of this point, by laws passed at the instance of Congress."(fn19)

The second belief was that, in light of the unhappy experience of the British with Crown monopolies,(fn20) it was essential to limit the power of the federal government to impose costs on society as a whole

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to benefit a favored few.(fn21) Accordingly, the framers modeled the Copyright Clause on the Statute of Anne,(fn22) a British law that provided for a term of copyright protection while largely supplanting the earlier system of Crown favoritism and censorship.(fn23)

The framers' belief that copyright protection was necessary for the dissemination of new works was solidly grounded in economic theory that is at least as valid today as it was when the Copyright Clause was written. Producing a new work of authorship involves considerable expenditure of money, time, and effort.(fn24) Likewise, publishing and disseminating such a work can be costly.(fn25) Unlike an author, however, a copyist need incur only the costs of publication and dissemination.(fn26)

Thus, absent copyrighted protection, copyists could always either deprive authors of their markets by selling substantially the same product at a lower price, or by selling at the same price while enjoying a higher profit margin.(fn27) In either event, copyists could benefit more from authors' initial labor than would authors themselves. In sum, without copyright protection, authors would have far less incentive to produce new works.(fn28)

Accordingly, the economic effect of copyright protection is to reserve to authors the monetary value of their works by making sales of infringing works more difficult and less profitable. This protection ensures that those who produce copyrightable works are far better able to support themselves by doing so.(fn29) In effect, copyright protection permits one of the most important components of any free market system: specialization. Absent such protection, fewer authors who were not independently wealthy could afford to devote the time and energy to becoming adept at writing, art, music, or other activities whose fruits are protectable by copyright.(fn30)

The temporary nature of copyright protection provided for by the Copyright Clause encourages the widespread dissemination of works of authorship. When a work's copyright protection eventually lapses,

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its sale price necessarily tends to fall toward the marginal cost of producing a copy of that work.(fn31) This decreased cost tends to increase demand, thus ensuring that the work will enjoy the widest possible range of distribution.(fn32)

III. TWO CENTURIES OF RIGHTSHOLDERS' ADVANCES

The past two centuries have seen a vast increase in both the scope and duration of copyright protection, coupled with a similarly vast increase in the wealth and political influence of the copyright industries. The first U.S. copyright statute applied only to books, maps, and charts, reserving to authors the rights to such works for a fourteenyear term, coupled with a renewal term of the same duration.(fn33) By the end of the second century of copyright protection, the scope of protection had expanded to encompass all original works of expression fixed in tangible media, and the period of exclusivity enjoyed by authors had reached the term of life plus fifty years.(fn34)

Meanwhile, the value of copyrighted works had increased to the point where copyright-protected industries were poised to become predominant in the American economy.(fn35) With this new wealth, the copyright industries have also come to enjoy very substantial political influence, so much so that it is only a small exaggeration to claim that "the debate over intellectual property rights has become an economic battle by the producers of computer software and entertainment media waged to determine who will govern the world economy in the first half of the next century."(fn36)

Any industries that enjoy both a government-enforced monopoly and considerable political power are naturally tempted to use them to their own benefit, and the copyright industries are no exception: "The legislative process is skewed to disproportionately and consistently privilege powerful, well-organized owner interests at the expense of the interests of the public in use and reuse of copyrighted informational and imaginative works."(fn37)

In the waning years of the twentieth century, the legislative advantages enjoyed by the copyright industries have reached a new peak. As the following sections will show, new legislation has resulted

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in an elevation of rightsholders' interests over those of the public at large to a degree that threatens the balance of the...