7 J. World Intell. Prop. 5 (2004)

handle is hein.journals/jwip7 and id is 1 raw text is: 








       Copyright Term Extension and the Scope of
                 Congressional Copyright Power

                                Eldred v. Ashcroft



                                R.   Anthony  REESE*



I.   BACKGROUND

     In 1998,  the U.S.  Congress  extended   the term  of both  unexpired  and  future
copyrights by 20 years. The U.S. Supreme   Court  recently upheld that extension against
constitutional challenge in the case of Eldred v. Ashcroft.' Understanding Eldred requires
familiarity with  the  evolution  of  the  term   of protection  over   the history  of
U.S. copyright  law. In 1790, the U.S. Congress  adopted  the first U.S. Copyright Act,
providing  an initial term of protection of 14 years from publication and registration. If
the author was  alive at the end of the initial term she could renew  the copyright for
another  14  years, giving a total possible term  of 28  years.2 For nearly 200  years,
U.S. copyright  law retained this basic structure, granting an initial term of protection,
usually from the date of publication, with the possibility of a second, renewal term of
protection once  the initial term expired. Congress, however, twice expanded   the total
duration of such protection, first to 42 and then to 56 years.3 Both times it granted the
longer term  not only to works  copyrighted  after the new law  took effect, but also to
any  work  that had  already been  copyrighted,  as long as the copyright  had not  yet
expired.4

     In the  1976 Copyright   Act, effective on  1 January 1978,  Congress  altered the
structure of the  copyright  term. Works   created  on  or after 1 January  1978  were
protected for a unitary copyright term. That term started with the work's creation and,
in most cases, lasted for the life of the author plus an additional 50 years, as required by


    * B.A., Yale University; J.D., Stanford Law School; Thomas W. Gregory Professor, School of Law, The
University of Texas at Austin, Texas, U.S.A.
     The author would like to thank Graeme Dinwoodie, Paul Goldstein, Doug Laycock, Christopher Leslie and
Neil Netanel for comments on earlier drafts, and Beth Youngdale for research assistance. He may be contacted at:
<(treese@mail.law.utexas.edu.
    I Eldred v. Ashcroft, 537 U.S. 186 (2003).
    2  1, 1 Stat. 124 (1790). Protection was available both for works published after the law was passed and for
works that had been previously published (but which, of course, could not have enjoyed any federal copyright
protection before the 1790 Act was adopted).
    3 In 1831, Congress extended the initial term from 14 to 28 years, for a total possible term of 42 years:  1, 4
Stat. 436 (1831). It extended the renewal term in 1909, from 14 to 28 years, for a total possible term of 56 years:
 23, 35 Stat. 1080-81 (1909).
    4  16, 4 Stat. 436, 439 (1831);  24, 35 Stat. 1080-81 (1909).

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