The Problem with Congress and Copyright Law: Forgetting the Past and Ignoring the Public Interest

Abstract

In 1998 Congress enacted the Sonny Bono Copyright Term Extension Act (CTEA), lengthening the terms of existing and future copyrights. In 2003, the Supreme Court held that the CTEA was constitutional. This article reviews the history of copyright law to ascertain the historical purposes and development of copyright protection. It considers the competing public benefit and property right rationales for copyright protection dating back prior to the Statute of Anne in 1710. The article argues that in the United States copyright generally has been viewed as a statutory grant designed to benefit the public interest by encouraging creation of works. This public benefit rationale traditionally has been controlling, but Congress in enacting the CTEA was influenced primarily by a property right rationale for copyright at the expense of the public interest. The CTEA is inconsistent with copyright's historical purposes and the requirement of limited-term copyrights. The article suggests that in future copyright legislation, Congress should return to the public benefit rationale and act to serve the broader public interest.

Keywords: copyright, CTEA