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Constitution Day: The U.S. Constitution and Copyright Balance

Last Updated on April 22, 2021, 1:24 pm ET

Happy Constitution Day!  September 17th commemorates the signing of the U.S. Constitution in 1787.  Among its many clauses, the Framers of the Constitution provided for an intellectual property clause in Article I, Section 8, Clause 8, which grants Congress the power:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

This clause provides the rationale for our intellectual property system.  While the clause is a grant of power to Congress, so too is it an important limitation.  The Supreme Court of the United States has confirmed that the clause “is both a power and a limitation” and, in the patent case, Graham v. John Deere Co., stated that “Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose.”  In copyright cases, the Supreme Court has confirmed that “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.”  Twentieth Century Music Corp. v. Aiken.

It is important to remember that the Constitution allows Congress to set limited-time monopolies over intellectual property, but ultimately the goal is “To promote the Progress of Science and useful Arts.”

Promoting progress depends on a rich public domain.  The public domain not only allows the public to access books and texts for learning and discovery, but also serves as a storehouse of raw materials from which derivative works are created and new ideas are built.

Unfortunately, copyright term has been extended extensively since the first Copyright Act of 1790 (modeled after the 1710 Statute of Anne) which provided for a 14 year initial term, with the possibility of a 14 year renewal.  Currently, the copyright term is the life of the author plus 70 years or 95 works for corporate works, significantly exceeding the international term of life plus 50 years.  The currently negotiated Trans-Pacific Partnership Agreement (TPP), a large free trade agreement between 12 countries in the Asia and Pacific region, includes proposals to export this term to other countries, but also includes a proposal from Mexico to extend our current term to the life of the author plus 95 years.  Lengthy copyright terms hinder the stated Constitutional rationale for the intellectual property protection by shrinking the public domain and exacerbating the orphan works problem.

In the Eldred v. Ashcroft case, the Supreme Court unfortunately upheld by a 7-2 majority that the Copyright Term Extension Act which set the current copyright term, deferring to the judgment of Congress.  The majority opinion in that case did not, however, address the appropriateness of the copyright term extension.  Justice Breyer, however, in dissent vigorously opposed the extension as a violation of the Constitutional rationale of the intellectual property system:


The economic effect of this 20-year extension—the longest blanket extension since the Nation’s founding—is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but their heirs, estates or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of “Science”—by which word the Framers meant learning or knowledge.

While the Eldred case had the unfortunate effect of upholding the current term of life plus 70 years, the Supreme Court has interpreted the intellectual property clause to place limits on copyright protections in other areas.  For example, the Court has ruled that copyright does not protect facts, only expression.  See Harper & Row v. Nation Enterprises.  In Feist Publications v. Rural Telephone Service, the Supreme Court held that “Originality is a Constitutional requirement” for copyright protection and that:

As Justice Brennan has correctly observed, however, this is not “some unforeseen byproduct of a statutory scheme.” It is, rather, “the essence of copyright,” ibid., and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but “to 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. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler’s selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. (internal citations omitted).

Aside from copyright term and the scope of copyright, copyright limitations and exceptions can help advance the important Constitutional goal of promoting progress.  The Copyright Act has a number of specific limitations and exceptions as well as a flexible doctrine known as fair use, codified under Section 107.  These limitations and exceptions to copyright allow for the reliance on copyrighted works without permission of the rightholder.  Fair use is a critical right of users, allowing copyright law the flexibility to adapt to evolving technologies and promoting the progress of science.

The Supreme Court in Campbell v. Acuff-Rose noted that fair use supports the Constitutional purpose of copyright:

The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which the law is designed to foster.” . . . The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.  Such works thus lie at the hart of the fair use doctrine’s guarantee of breathing space within the confines of copyright . . . (internal citations omitted).

In addition to supporting the intellectual property clause of the U.S. Constitution, fair use also provides an important accommodation to the guarantee of freedom of speech in the First Amendment.  In the Eldred v. Ashcroft case, the Supreme Court confirmed that fair use serves as a “First Amendment safeguard.”

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations.  First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection . . . Second, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.

The Constitution’s intellectual property clause grants Congress the power to permit limited time monopolies on copyright, but also mandates balance in the copyright system.  The ultimate goal of copyright is to promote progress and advance the public good.  Thus, the Supreme Court has interpreted the intellectual property clause to limit copyright in many ways, by distinguishing between facts and expression and requiring some degree of originality for copyright protection.  While copyright and the First Amendment right to freedom of speech could potentially be in tension with each other, the fair use doctrine provides an important safeguard to both accommodate the rights of users and promote the progress of science.  In celebrating Constitution Day, celebrate that the Constitutional rational for the U.S. intellectual property system is inherently grounded in the concept of balance: providing an incentive to authors, but ultimately advancing the general public good.