“The Congress shall have 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 …” [1]

 

INTRODUCTION

 

Before the enactment of the Copyright Term Extension Act, [2] (hereinafter “CTEA”) the United States had a copyright term of author’s life plus fifty years, [3] or when there is no identifiable author, a copyright term of the earlier of seventy-five years from publication or one-hundred years from creation, [4] under the 1976 Copyright Act. This copyright term of the author’s life plus fifty years put the U.S. in conformance with global standards under the Berne Convention [5] and the World Trade Organization (hereinafter “WTO”)’s Agreement on Trade Related Aspects of Intellectual Property Rights [6] (hereinafter “TRIPS”).

 

In 1993, however, a European Union directive extended the copyright term to the author’s life plus seventy years. [7] The United States followed suit in 1998 with the Sonny Bono Copyright Term Extension Act, which, like the E.U. directive, extended the copyright term for an individual’s works by twenty years, resulting in a term of the author’s life plus seventy years. [8] It also extended the term for anonymous, pseudonymous, or works made for hire by twenty years, resulting in a term of ninety-five years from publication or 120 years from creation, whichever comes first. [9] The CTEA also applied retroactively, extending the term of existing copyrights. [10]

 

This retroactive extension of the terms of existing copyrights was challenged in Eldred v. Ashcroft, but the United States Supreme Court on January 15, 2003 held (in a seven to two decision) that this did not transgress constitutional limitations. [11] This article will examine the constitutionality of the CTEA, and will consider the question of when a limited time for a copyright term does end, under the U.S. Constitution. [12]…

 

Sue Ann Mota*