Vol 7 No 1 - Roger Williams University School of Law

C. The Length of Time a Property Right Will EndureThe United States Constitution contains the express wordsthat the IP rights legislated should be for “limited Times.” Itcould be read to be an explicit guarantee of the public domain. Inthe recent case of Eldred v. Reno,82 the constitutional validity ofthe Copyright Term Extension Act, 1998 (CTEA)83 legislationextending the U.S. copyright term from life of the author plus fiftyyears to life of the author plus seventy years,84 was questioned.The plaintiffs, who were in the business of publishing materialswhen copyright had expired, argued that the CTEA wasunconstitutional for three reasons:in both its prospective and retrospective applications theCTEA unjustifiably infringes upon freedom of speechprotected by the First Amendment;in its application to preexisting works, the CTEA violatesthe originality requirement of the Copyright Clause;in extending the term of subsisting copyrights, the CTEAviolates the “limited Times” requirement of the CopyrightClause.85The First Amendment argument, which was rejected, isconsidered below. On the issue of lack of originality, the courtdisposed of the issue saying:The plaintiff’s reason from this that the CTEA cannotextend an extant copyright because the copyrighted workalready exists and therefore lacks originality. Not so.Originality is what made the work copyrightable in thefirst place. A work with a subsisting copyright hasalready satisfied the requirement of originality and neednot do so anew for its copyright to persist. If theCongress could not extend a subsisting copyright for wantof originality, it is hard to see how it could provide for acopyright to be renewed at the expiration of its initialterm—a practice dating back to 1790 and not questioned82. 239 F.3d 372 (D.C. Cir. 2001).83. 17 U.S.C. § 302 (1994 & Supp. V 1999).84. This change was made to bring the U.S. copyright law into line with the EU.85. Eldred, 239 F.3d at 374.