Guarding against abuse: Restoring constitutional copyright

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Copyrights are intended to encourage creative works through the mechanism of a statutorily created limited property right. Under both economic and legal analysis, they are recognized as a form of government-granted monopoly.

Economic efficiency and constitutional law both suggest copyrights should serve to solve potential market failures, to “promote the progress of the sciences.” In examining how long the specific terms for copyright and patent should be, Milton Friedman deemed the subject a matter of “expediency” to be determined by “practical considerations.” Friedrich Hayek, among the most forceful defenders of the importance of property rights, distinguished copyright from traditional property rights and identified a number of problems with modern copyright that he said called for “drastic reforms.” The conservative movement, which largely has supported originalist methods of interpreting the Constitution, traditionally has been in favor of copyright reform, with proposals usually including shorter copyright terms.

Historically, copyright terms have been quite short. As required by Article 1, Section 8, Clause 8 of the U.S. Constitution, copyright can only be granted for “limited times.” Evidence from the Founding Era suggests this limited duration was central to the original public meaning of the instrument, as evident in this definition from an 1803 British legal dictionary:

COPY-RIGHT [sic], the exclusive right of printing and publishing copies of any literary performance, for a limited time.

The framers incorporated a modified version of the British legal system of copyright, first into state laws; then, in the specific language that appears in the Constitution; and finally, in the federal statute adopted in 1790. The Copyright Clause limited the duration of both copyright and patents, and when the founders wrote “limited times,” that limitation historically had been for 14 years.

That original U.S. statute created a 14-year term, with the option of a 14-year extension if the author was still alive. Until 1976, the average copyright term was 32.2 years. Today, the U.S. copyright term is the life of the author, plus 70 years.

By contrast, patent terms have changed very little. Today’s term for utility patents is either 17 years from patent issuance or 20 years from patent filing, whichever is longer.  (The term for design patents, which resemble copyrights in some key respects, is still the original 14 years.) As legal historian Edward Walterscheid puts it, while patents and copyrights were included in the same clause of the Constitution and originally had the same or similar durations, the patent term has increased by just 43 percent while the copyright term has increased by almost 580 percent. Congress must justify why a 20-year term can provide sufficient incentive to inventors, but not to writers and artists.

The Supreme Court has been relatively clear on the ultimate purpose and goals of the Copyright Clause in the Constitution:

The limited scope of the copyright holder’s statutory monopoly…reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

The primary objective of copyright is not to reward the labor of authors, but “[t]o promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.

Given the purpose of copyright, current term lengths are inconsistent with what the founders had in mind. Alas, the Supreme Court has deferred to Congress to set a term for copyright that is consistent with the Constitution (See U.S. v. Eldred and Golan v. Holder). While the court has noted that infinite copyright clearly would be unconstitutional, they have assessed the current copyright term of life of the author plus 70 years to be, technically, limited.

The court long has held that acts of Congress are “presumptively constitutional.” And the presumption of constitutionality given to acts of Congress is “strong.” As the court explained in 1953′s U.S. v. Five Gambling Devices:

This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.

This precedent can create something of a vicious circle. Congress presumes the Supreme Court will be the final arbiter of constitutionality and then the Court defers to Congress, and with that, Congress assumes the measure to be constitutional. Instead, each branch must have a role in interpreting the Constitution.

In 2012 the House Republican Study Committee issued a report on this topic (which I authored), that argued:

  1. Assessing a law’s constitutionality is not, and should not be, the sole dominion of the judicial branch. All three branches were designed to assess constitutionality.
  2. Assessing a law’s constitutionality is not the sole dominion of the courts, and it was never intended to be so.
  3. Inaction by Congress can validate unconstitutional actions.
  4. The court may not be able to consider the constitutionality of all legislation because of questions of standing, ripeness, or a lack of bandwidth to hear all cases.
  5. Just because the Supreme Court rules something as constitutional—or does not rule something as unconstitutional—does not mean that Congress can’t take subsequent action.

As the RSC report concluded:

Congress has a responsibility to ensure that its legislation is consistent and enabled by the Constitution, but it also must affirmatively act when other branches are violating the Constitution – so as to not validate these unconstitutional actions. Acts of Congress are…”presumptively constitutional” under judicial review, which means that the court assumes that Congress has deliberated on a law’s constitutionality.

But in the context of copyright, in the past century, Congress has abdicated its role of ensuring their legislation on term length is constitutional. Congress must recognize that current copyright terms are vastly unmoored from the original public meaning of the Copyright Clause, and in any case, poor public policy.

James Madison and other founders referred to copyrights and patents as forms of government-granted “monopoly” and noted that the Constitution had “limited them [monopolies] to two cases, the authors of books, and of useful inventions.” While highly skeptical of all such monopolies, Madison argued that these two specific monopolies were justified because they provided an actual community “benefit” and because these monopolies are required to be “temporary.” Madison concluded, consistent with British historical and legal tradition, that “under that limitation, a sufficient [recompense] and encouragement may be given,” but reiterated that “perpetual monopolies of every sort, are forbidden.”

What seems to have been completely forgotten is that Madison ominously warned that all monopolies, including copyright, must be “guarded with strictness [against] abuse.” In fact, the founders had historical experience of abuses by those with close connections to the king and knew that grants of monopoly were dangerous if left unrestrained.

The restriction that copyright and patent terms be for “limited times” is textually unique within the Constitution, but it is not the only aspect of the Copyright Clause that is unique. Article 1 Section 8 enumerates the specific powers granted to Congress, but for only one of those powers did the framers specify a purpose. For the Copyright Clause, the founders elaborated that the clause’s specific purpose is “to promote the progress of science and useful arts.”

The Supreme Court has interpreted this clause, in the context of patents, that “[t]he Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose.” Copyright laws, like the patent laws, “by constitutional command” must promote the progress of the sciences and useful arts, “This is the standard expressed in the Constitution and it may not be ignored.”

As with other enumerated powers of the federal government, Congress has expanded copyright far beyond what was originally intended. Just as Congress frequently neglects to abide the Origination Clause and the Commerce Clause, it likewise has ignored the Copyright Clause’s requirement that these monopoly instruments be granted only for “limited times.”  Contributing greatly to this distortion has been the influence of a persistent army of special interest lobbyists, usually representing media companies, rather than the interests of creators and the general public.

In order to restore the original public meaning of copyright, copyright’s term must be shortened. We must reconsider existing international treaties on copyright and not sign any treaty that either would lock in existing terms or extend terms even longer (such as the Trans Pacific Partnership Treaty). Finally, copyright terms must not be extended to “life+100″ when the next copyright extension bill is expected to come up in 2018.

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