33 Sw. U. L. Rev. 327 (2003-2004)
Forcing the Copyright Genie Back into the Bottle: Public Policy Implications of Copyright Extension Legislation

handle is hein.journals/swulr33 and id is 337 raw text is: FORCING THE COPYRIGHT GENIE
Cecil C. Kuhne, III*
The United States Supreme Court has poignantly described copyright
as the engine of free expression,' and as such the Copyright Clause of the
Constitution' attempts to strike a careful balance between, on the one hand,
providing financial incentives for copyright owners to create original works
(by granting exclusive rights to them), and, on the other hand, allowing
eventual public access to those works (by limiting the duration of the
creators' exclusive rights).3 While the economic motivations for individual
authors and artists are commonly asserted as a justification for the extension
of copyright protection, the goal of a robust and constantly rejuvenated
public domain4 is also, in the minds of most observers, crucial to the
. Mr. Kuhne is counsel in the Dallas office of Fulbright & Jaworski L.L.P.
1. Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 558 (1985).
2. The Patent and Copyright Clause of the Constitution provides that [t]he Congress shall
have Power... [t]o 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.
U.S. CONST. art. I, § 8, cl. 8.
3. As the Supreme Court explained in Sony Corp. of America v. Universal City Studios,
The monopoly privileges that Congress may authorize are neither unlimited nor
primarily designed to provide a special private benefit. Rather, the limited
grant is a means by which an important public purpose may be achieved. It is
intended to motivate the creative activity of authors and inventors by the provision
of a special reward, and to allow the public access to the products of their genius
after the limited period of exclusive control has expired.
464 U.S. 417, 429 (1984).
4. The public domain consists of that repository of works which are ineligible for
copyright, were created before copyright law existed, have had their copyrights expire, or have

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