Copyright's Modest Ontology - Theory and Pragmatism in Eldred v. Ashcroft

17 Pages Posted: 12 Apr 2004 Last revised: 14 Oct 2017

See all articles by Graeme W. Austin

Graeme W. Austin

Victoria University of Wellington

Date Written: 2003


Focusing on the recent U.S. Supreme Court decision, Eldred v. Ashcroft, which held that the U.S. Congress acted constitutionally when it extended copyright terms by twenty years, this article argues that copyright law in the United States for the most part responds to pragmatic imperatives. The article examines the theoretic/pragmatic distinction at an institutional level and argues that intellectual property lawmaking is at its most pragmatic in the legislative realm. While there is greater potential for theoretical concerns to influence intellectual property law-making in the judicial review context, in Eldred v. Ashcroft the Court declined to allow grand intellectual property theories to dictate the freedom Congress enjoys to craft copyright legislation in the light of its rational view of the best (pragmatic) cultural and economic policies. The article concludes that in Eldred v. Ashcroft there can be detected an ontological approach to the Copyright Clause in the U.S. Constitution. The Court's role is to ensure that Congress acts consistently with what copyright is; that is, a vehicle for motivating the creative spark of authorship. Congress has relatively free rein to determine what copyright should do. Moreover, any limitations on what copyright is meant to achieve are certainly not to be determined by theoretical concerns. Even the Court's ontological approach to copyright law should be regarded as modest, however, given the Court's general deference to the policy and cultural choices legislators make in the copyright field.

Keywords: Copyright, intellectual property, First Amendment

Suggested Citation

Austin, Graeme W., Copyright's Modest Ontology - Theory and Pragmatism in Eldred v. Ashcroft (2003). Canadian Journal of Law and Jurisprudence, Vol. 16, No. 2, pp. 163-178, July 2003, Victoria University of Wellington Legal Research Paper No. 135/2017, Available at SSRN:

Graeme W. Austin (Contact Author)

Victoria University of Wellington ( email )

PO Box 600
Wellington, 6140
New Zealand


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics