Copyright Term Extensions, the Public Domain and Intertextuality Intertwined

Journal of Intellectual Property Law Volume 10 | Issue 1 Article 2 October 2002 Copyright Term Extensions, the Public Domain and Intertextuality Intertwined Ashley Packard University of Houston-Clear Lake Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Constitutional Law Commons, and the Intellectual Property Law Commons Recommended Citation Ashley Packard, Copyright Term Extensions, the Public Domain and Intertextuality Intertwined, 10 J. Intell. Prop. L. 1 (2002). Available at: https://digitalcommons.law.uga.edu/jipl/vol10/iss1/2 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Packard: Copyright Term Extensions, the Public Domain and Intertextuality JOURNAL OF INTELLECTUAL PROPERTY LAW VOLUME 10 FALL 2002 NUMBER 1 ARTICLES COPYRIGHT TERM EXTENSIONS, THE PUBLIC DOMAIN AND INTERTEXTUALITY INTERTWINED Ashley Packard* I. INTRODUCTION In its current term, the Supreme Court is addressing a much-debated question among legal scholars-whether copyright law encroaches upon freedom of expression.' The justices will review a controversial decision issued by the District of Columbia Circuit Court of Appeals. The appeals court held that copyright is immune from First Amendment challenges.' Furthermore, it concluded that in crafting copyright legislation Congress is not bound by the introductory language in the Constitution's Copyright Clause,3 which states that copyright's purpose is "to promote the Progress of Science and useful Arts."' •Assistant Professor of Communication, University of Houston-Clear Lake. Eldred v. Reno, 239 F.3d 372,57 U.S.P.Q.2d (BNA) 1842 (D.C. Cir. 2001), nhg dededsub mom., Eldred v. Ashcroft, 255 F.3d 849,59 U.S.P.Q.2d (BNA) 1606 (D.C. Cr.2001) (en bane), ctw.gmnte, 122 S.Ct. 1062 (U.S. Feb. 19,2002) (No. 01-618). The case was argued before the Supreme Court on Oct. 9, 2002. The Court had not yet issued an opinion as of this Article's print time. The Supreme Court's docket is posted on its Web site, at http://www.supremecourtus.gov/docket/ docket.html (enter docket number 01-618 in search field) (last visited Dec. 1, 2002). 2 3 4 Eldred, 239 F.3d at 375. Id at 378. U.S. CONsT. art. 1,§ 8, cl. 8. Published by Digital Commons @ Georgia Law, 2002 1 Journal of Intellectual Property Law, Vol. 10, Iss. 1 [2002], Art. 2 J. I'ELL PROP.L [Vol. 10:1 Petitioners in Eldred v.Ashcroft,s the case under consideration, are involved in enterprises that reproduce, restore or add value to works in the public domain.6 They argue that the Sonny Bono Copyright Term Extension Act (CTEA), which prospectively and retrospectively extends copyright terms, impinges upon their First Amendment freedoms of speech and press' by denying them access to millions of works that will now be kept out of the public domain for another twenty years.9 They also argue that the Act's retrospective extensions violate both the Constitution's Copyright Clause,"0 which grants Congress the power to protect a work for- limited times, and the Copyright Act's requirement of originality." The case is significant because its outcome has the potential to determine the constitutionality of term extensions and the value that our legal system places on the public domain. Even more importantly, it may determine whether the First Amendment can be considered applicable to copyright law at all. Many legal scholars believe the court of appeals' conclusion that there can be no First Amendment challenge to a copyright statute sets an astounding precedent with implications that go beyond the realm of term extensions to other laws that also have the potential to harm freedom of expression and the public domain. 2 5 Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001), rhg dniedsub nomn., Eldred v. Ashcroft, 255 F.3d 849 (D.C. Cir. 2001) (en banc), cm. granted, 122 S. Ct 1062 (U.S. Feb. 19, 2002) (No. 01-618). The Supreme Court's docket is posted on its Web site, athttp://www.supremecourtus.gov/docket/ docket.html (enter docket number 01-618 in search field) (last visited Dec. 1, 2002). 6 Lead petitioner is Eric Eldred, the publisher of Eldritch Press, a free Internet library of public domain works, at http://www.eldritchpress.org/ (last modified Nov. 25, 2002). Other petitioners are Higginson Book Co.; Jill A. Crandall; Tri-Horn Int'l; Luck's Music Library, Inc.; Edwin F. Kalmus & Co., Inc.; American Film Heritage Ass'n; Moviecraft, Inc.; Dover Publications, Inc.; and Copyright's Commons. See Appellant's Petition, infra note 9, at i1 Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended at 17 U.S.C. § 101, 108, 203(a)(2), 301(c), 302, 303 and 304). 8 U.S. CONST. amend. I (the First Amendment provides, in relevant part, that "Congress shall make no law... abridging the freedom of speech, or of the press...."). ' SeeAppellant's Petition for Writ of Certiorari at 17-24, Eldred v. Ashcroft, 239 F.3d 372 (D.C. Cir. 2001) (No. 01-618), availabl at LEXIS No. 01-618, 2001 U.S. Briefs 618 (Oct. 11, 2001) [hereinafter Appellant's Petition] (arguing that the CTEA's retroactive aspect violates the "limited times" requirement of the copyright clause). '0 U.S. CONST. art. I, § 8, d. 8 (granting Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Tunes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"). See Appellant's Petition, seepra note 9, at 10-17. 12 See Brief of Amici Curiae Copyright Law Professors at 3-7, Eldred v. Ashcroft, 239 F.3d 372 (D.C.Cir. 2001) (No. 01-618), avaiabkat LEXIS No. 01-618,2001 U.S. Briefs 618 (Nov. 26,2001). See also Brief of Amici Curiae Jack M. Balkin, Yochai Benkler, Bert Neubome, and Jed Rubenfeld at 1-3, Eldred v. Ashcroft, 239 F.3d 372 (D.C. Cir. 2001) (No.01-618), aailabkat http://supreme.1p. findlaw.com/supreme-court/docket/2002/october.html (last visited Oct 20, 2002) (offering https://digitalcommons.law.uga.edu/jipl/vol10/iss1/2 2 2002] Packard: Copyright Term Extensions, the Public Domain and Intertextuality COPYRIGHT TERM EXTENSIONS Despite the court's dismissal of First Amendment arguments regarding copyright law, there is a growing body of legal scholarship arguing that copyright can and does abridge freedom of expression on occasion. 3 Moreover, the-Eleventh Circuit Court of Appeals recently made a strong case for First Amendment rights in relation to copyright law when it recognized the need to protect a defendant's fair use to parody a copyrighted work. 4 CTEA supporters counter that far from inhibiting First Amendment concerns, term extensions will encourage creative expression."5 This argument alludes to the Supreme (...truncated)