cyckV4

68 INTELLECTUAL PROPERTY & THE CONSTITUTION
completed creative activity. [A]s our cases repeatedly and consistently emphasize, ultimate
public access is the overriding purpose of the constitutional provision. Ex post facto
extensions of existing copyrights, unsupported by any consideration of the public interest,
frustrate the central purpose of the Clause.
VII
The express grant of a perpetual copyright would unquestionably violate the
textual requirement that the authors’ exclusive rights be only “for limited Times.”
Whether the extraordinary length of the grants authorized by the 1998 Act are invalid
because they are the functional equivalent of perpetual copyrights is a question that need
not be answered in this case because the question presented by the certiorari petition
merely challenges Congress’ power to extend retroactively the terms of existing
copyrights. . . . It is important to note, however, that a categorical rule prohibiting
retroactive extensions would effectively preclude perpetual copyrights. More
importantly, as the House of Lords recognized when it refused to amend the Statute of
Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress
may extend existing monopoly privileges ad infinitum under the majority’s analysis.
By failing to protect the public interest in free access to the products of inventive
and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/
Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this
area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent
Clause are, for all intents and purposes, judicially unreviewable. That result
cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole
to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the
province and duty of the judicial department to say what the law is.” Marbury v. Madison
(1803). We should discharge that responsibility as we did in Chadha.
I respectfully dissent.
Justice BREYER, dissenting.
. . . The economic effect of this 20-year extension—the longest blanket extension
since the Nation’s founding—is to make the copyright term not limited, but virtually
perpetual. Its primary legal effect is to grant the extended term not to authors, but to their
heirs, estates, or corporate successors. And most importantly, its practical effect is not to
promote, but to inhibit, the progress of “Science”—by which word the Framers meant
learning or knowledge.
. . . Although the Copyright Clause grants broad legislative power to Congress,
that grant has limits. And in my view this statute falls outside them.
I
The “monopoly privileges” that the Copyright Clause confers “are neither unlimited
nor primarily designed to provide a special private benefit.” . . . This Court has made clear
that the Clause’s limitations are judicially enforceable. And, in assessing this statute for that
purpose, I would take into account the fact that the Constitution is a single document, that
it contains both a Copyright Clause and a First Amendment, and that the two are related.
The Copyright Clause and the First Amendment seek related objectives—the
creation and dissemination of information. When working in tandem, these provisions
mutually reinforce each other, the first serving as an “engine of free expression,” the
second assuring that government throws up no obstacle to its dissemination. At the same