Supreme Court to hear Eldred v. Ashcroft; Mickey Mouse in Jeopardy

The Supreme Court has agreed to decide whether the Sonny Bono Copyright Term Extension Act (CTEA), which extended the duration of subsisting and future copyrights by 20 years, is constitutional.

In 1999, Eric Eldred, among others, initiated this action to challenge the constitutionality of the CTEA. The plaintiffs in that action claimed that the retrospective extension of copyright protection is beyond Congress' enumerated power under the Copyright Clause. The United States District Court for the District of Columbia held that the limited time period of the Copyright Clause was subject to the discretion of Congress. The court further held that Congress has authority to enact retrospective laws under the copyright clause.

In the most recent appeal, an amicus contended that the CTEA violates the preamble of the Copyright Clause because extending the term of a subsisting copyright does not "promote the Progress of Sceince and useful Arts." The Court of Appeals for the DC Circuit did not address the merits of this argument because, the court says, the plaintiffs took a position "diametrically opposed to that of the amicus." Even if it had considered the amicus's position, the court continued, the result would be the same.

The court stated that "Congress had found that extending the duration of copyrights on existing works would . . . give copyright holders an incentive to preserve older works . . . Preserving access to works that would otherwise disappear -- not enter the public domain but disappear -- 'promotes Progress' as surely as does stimulating the creation of new works."

If the Supreme Court decides that the CTEA is unconstitutional, much important intellectual property will fall into the public domain. Most notably, Mickey Mouse, first copyrighted in 1928, will fall into the public domain in 2004.

Michael A. Moreno, MTTLR

Related Links:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=dc&navby=case&no=995430D http://www.ninch.org/copyright/townmeetings/chicagozorich.html