How come the periodic copyright term extensions do not violate the US Constitution?

Question

US Constitution, section 8, clause 8:

[The Congress shall have Power] To 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

This authorizes both patents and copyright. My question is only about the latter.

In practice the Congress has been extending the copyright term by 20 years every 20 years, effectively making copyright terms unlimited. This seems to contradict the constitution:

1. How does extending the term for existing works "promotes the progress"? The work has already been created! The only way the extension in 1996 encourages the creative work of 1930 is if the author in 1930 anticipates that the copyright term will be extended in 1976, 1996 &c. But then...

2. ... if it is generally expected that the copyright term will be extended continually, then, effectively, the perception is that the copyright term is unlimited. This literally contradicts the Constitution.

I am sure I am not the first one to advance this (or similar) argument, so my question is why is the argument rejected?

If it has been considered by a court (SCOTUS?) I would love to see a reference to the decision and a brief explanation/summary.

Notes:

• I am not a lawyer. I am not a law student. I am a mathematician. Please do not tell me to read a 25 page "brief". :-)

• I am not arguing that ...

  1. ... copyright extension robs the Public Domain ...
  2. ... it is unfair that everything created before 1929 is in the Public Domain while nothing created after that date will ever enter the Public Domain ...

  ... these are irrelevant to my question.

• I am not asking why Congress does this.

• I am asking how come this is constitutional?

Answer 1

See Eldred v. Ashcroft 537 U.S. 186 (2003) and Golan v. Holder 565 U.S. ___ (2012), especially the first four pages of Eldred (the syllabus).

1. How does extending the term for existing works "promote the progress"?

   This is a judgement that the courts have left in the hands of the legislature.

   The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain. (Eldred)

2. if it is generally expected that the copyright term will be extended continually, then, effectively, the perception is that the copyright term is unlimited

   First, this isn't generally expected.

   Concerning petitioners' assertion that Congress might evade the limitation on its authority by stringing together "an unlimited number of 'limited Times,'" the Court of Appeals stated that such legislative misbehavior "clearly is not the situation before us." (Eldred)

   Second, in the situation that has actually been happening, Eldred says:

   Although conceding that the CTEA's baseline term of life plus 70 years qualifies as a "limited Tim[e]" as applied to future copyrights, petitioners contend that existing copyrights extended to endure for that same term are not "limited." In petitioners' view, a time prescription, once set, becomes forever "fixed" or "inalterable." The word "limited," however, does not convey a meaning so constricted. At the time of the Framing, "limited" meant what it means today: confined within certain bounds, restrained, or circumscribed. Thus understood, a timespan appropriately "limited" as applied to future copyrights does not automatically cease to be "limited" when applied to existing copyrights.

This is Constitutional because the Copyright Clause gives Congress the power to make these extensions, and its legislative actions until now have not strayed beyond the scope of what the Constitution permits.

Briefly, the court took a textualist approach to interpreting the "limited times" restriction. They found that "at the time of the Framing, limited meant what it means today: confined within certain bounds, restrained, or circumscribed," and that Congress has a long established practice of providing extensions to both patent and copyright holders. "Congress’ unbroken practice since the founding generation of applying new definitions or adjustments of the copyright term to both future works and existing works overwhelms petitioners’ argument." This weighs in favor of the view that "limited times" did not mean to the founders that extensions are unconstitutional.

Answer 2

You seem to be confusing the concepts of Copyright and Patent. The quoted portion of the U.S. Constitution applies to Patents, which cover ideas, concepts, inventions and methods (i.e. "Sciences and useful Arts").

Copyright, by contrast, protects the work itself, its words and images and formatting, but not the underlying idea.

To put it another way, let us say that you, as a mathematician, develop a mathematical theorem. When you publish your paper in an academic journal, you have copyright, so no one can claim your work, nor (re)produce it without your consent. However, anyone can use your idea in their work, legally, without even so much as attribution (this would be academic suicide, but legal).

In contrast, if I invent some device, the design for which I patent. I cannot stop people (with the patent, it may be possible through other means) from producing pictures for the device, but I can use the patent to stop people from (re)producing the device or concepts from the device to build something else.

Patents cover concepts not content; Copyright is the reverse. Patents must be novel and useful. Copyright need not be either of those things. Patents need to be applied for, evaluated, and granted. Copyright is automatic, and registering it is useful for legal challenges, but not necessary. I even have copyright for this answer.

TLDR: Patents are not extended retroactively. Copyright is. The Constitution is referring to patents.

Answer 3

My edited answer is addressing the "why is it constitutional part" of the question, with a foundation on how I came to the answer.

After further contemplation, it appears that the extension issue is more relevant in context to who the owner of the patent /copyright is.

A practical extension (which should be an exception) may be properly granted to an owner who got a concept to market late or due to another reasonable hardship. Then Extension should be granted, on a basis of "usefulness".

If it is a capital backed corp., just wanting to monopolize the market or extend royalties for some un-useful concept they took from a R&D agency or acquisition. Extension should be denied.

This application of law would be consistently "Necessary and Proper" to promote "useful" Arts and Sciences. And like other personal rights, it should be non-transferable except to heirs, to protect the creator from fraud and exploitation (but that's another matter unto itself).

Indeed the constitutionality operating on copy-rights is found under the treatment of Patent rights.

The invention of a font-style falls under a patent-right, the special use of the font-style to pen a novel falls under a copy-right. That is the end of the legal treatment of the personal ownership of a unique creation.

Regardless if it is a material design or concept to be used by industries or non-material idea or concept to be enjoyed by the senses.

They both involve the issue of the protected right to trade and profit from ideas (intellectual property) created in the mind. And also the reason they are put in the same constitutional clause.

A patent (right) and the right to copy and sell are the same principles. That have to do with personal (private) rights to property created by the author.

A Patent is a document [Title (property)] issued by the government that certifies exclusive ownership of an idea created and recorded on paper. And that includes exclusive *copyrights -- the right to copy, distribute, sell and profit from anything produced with a "likeness" of the intellectual idea contained on the registered deed. Google Letters of Patent.

And because corporations have no power to author or invent (create) ANYTHING as only man and Nature does. Extension of the time limits to corporate entities who may have sponsored or purchased the creation, would in principle be an Anti-Trust / Illegal Monopoly matter in-fact.

[The Congress shall have Power] To 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

A copyright is term and right to a registered patent of anything that was created / authored by use of Art and Science [knowledge] including the intellectual ideas recorded on any medium (drafts, schematics, music, and other writings).

For instance, a patent for a "formula" for a drug (Prozac, Viagra, etc), is no different than John Pemberton’s secret "recipe" for Coca Cola, if they would have actually registered the modified [sans cocaine coca-leaf] formula with congress to protect it only for a "limited time".

The fact of the matter is, that once you publish (distribute) something with the intent of making it available to everyone. It's no longer private property. And the use of Patent-rights or Copy-Rights is because you need the protection of our National government to allow you an exclusive limited time-frame to monetize your unique ideas and designs. After such 20 year time expires, it falls under fair use and public domain. (see the law on monopolies and anti-trust)

Here is some background from the Coca Cola example to clarify the relation of patents to other copyrighted information.

A patent is a “limited [copy]right granted by the government to an inventor.” Thus, for the duration of that patent’s life, which is 20 years, the inventor has the sole right to sell, make, distribute, and license that product. However, after that patent’s time has run, the formula becomes available to the public. In 1893, Coca-Cola patented its original formula, but after the formula changed, it was not patented again. ...A trade secret is a “piece of information whose value derives from it not being widely known.” ... While trade secrets are extremely valuable and generate a lot of publicity, there is virtually no legal protection if they are discovered unless the trade secret is misappropriated...