Construing the Copyright Act after 'Eldred'

67 Pages Posted: 2 Mar 2005

Date Written: February 2005


In Eldred v. Ashcroft, the Supreme Court upheld the constitutionality of the 1998 Copyright Term Extension Act (CTEA), which extended the copyright term of both new and existing works by twenty years, despite the lack of incentive that retroactive term extension provided for the creation of new works. While the CTEA is perhaps the most notorious example of special-interest rent-seeking in copyright law to date, a majority of the Court dismissed the petitioners' constitutional challenges without any mention of special-interest influence.

The Court's decision was disappointing but hardly surprising. Because the CTEA's language extending the copyright term was unambiguous, there was no issue of statutory construction. The issue was strictly constitutional, and the Court rarely strikes down economic laws like intellectual property statutes. Indeed, to do otherwise would thwart well-established constitutional principles including Congress's lawmaking power under Article I as well as separation of powers inherent in the structure of the Constitution.

In this paper, Professor Bohannan argues that whether or not the Eldred Court was correct in ignoring special-interest influences in its constitutional analysis of the CTEA, courts should not ignore those influences when engaging in statutory construction of the Copyright Act. Special-interest influence over the Copyright Act has been pervasive over the past few decades, and the general trend in copyright law has been an expansion of the rights of copyright owners at the expense of public access to copyrighted works. This tension between private and public interests in copyright law often presents itself in copyright infringement cases as a statutory ambiguity between private-and public-regarding provisions in the Copyright Act.

Professor Bohannan argues that, where possible, such statutory ambiguities in the interpretation of the Copyright Act should be resolved by rules of statutory construction that take into account the private- or public-interest nature of the ambiguous provisions. The paper identifies ambiguities between private-interest provisions, such as the derivative works right and the DMCA's prohibitions, and public-interest provisions, such as the idea/expression dichotomy and the fair use doctrine. She then offers a set of rules of statutory construction designed to resolve these ambiguities by cabining the scope of private-interest provisions while broadening the reach of provisions that are in the public interest.

Keywords: copyright, fair use, derivative works, DMCA, public choice, statutory interpretation

JEL Classification: D72, K29

Suggested Citation

Bohannan, Christina, Construing the Copyright Act after 'Eldred' (February 2005). U Iowa Legal Studies Research Paper No. 05-07. Available at SSRN: or

Christina Bohannan (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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