Academic journal article Harvard Law Review

Harmonizing Copyright's Internationalization with Domestic Constitutional Constraints

Academic journal article Harvard Law Review

Harmonizing Copyright's Internationalization with Domestic Constitutional Constraints

Article excerpt

A quick glance through recent copyright legislation suggests that we are in the midst of a "second enclosure movement," this time fencing off the "intangible commons of the mind" instead of the physical commons of the land. (1) In 1992 the Copyright Renewal Act (2) (CRA) abolished the longstanding renewal requirement for nearly all works; in 1998 the Sonny Bono Copyright Term Extension Act (3) (CTEA) extended the term of copyright protection by twenty years and the Digital Millennium Copyright Act (4) (DMCA) heightened penalties for copyright infringement on the Internet and provided copyright owners with an increased ability to control access to their copyrighted digital media. These are simply a few examples drawn from the larger set of copyright legislation enacted within the past two decades, a set that taken as a whole provides worrisome evidence of a one-way ratcheting up of copyright protection.

No surprise, then, that there is widespread feeling among many copyright scholars that Congress has unabashedly ceded to the lobbying pressures of the copyright industries and steadily cut into the heart of the public domain. (5) Scholars have unleashed a flurry of articles in the past decade warning about the public harms of copyright extensions and, cognizant of the skewed political economy, calling for measures by which to rein in Congress's legislative power in this domain. (6) By far the most vocal call has been for the judiciary to step up its policing of copyright legislation by looking to constitutional limits imposed by the First Amendment and the Copyright Clause; (7) the latter authorizes Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors ... the exclusive Right to their respective Writings." (8) Many of the arguments finding limitations in the Copyright Clause center upon original understandings of the Clause and, more generally, of the purposes of the copyright system and the role of government in that system. (9)

The fears of these scholars regarding the effects of the incessant expansion of copyright are well-founded. Copyright, or more precisely, the absence of copyright that defines the public domain, (10) is inextricably tied to the social conditions that give rise to freedom of speech, (11) and more generally, to a "democratic culture." (12) Although copyright is intended to incentivize innovation, expansive copyright legislation threatens to impoverish the ability of individuals to create meaningful forms of personal expression. However, arguments for stepped-up judicial policing via the Constitution are bound to fail in practice so long as they focus exclusively on copyright as a domestic regime bounded by a national constitution. With the rapid expansion of the Internet and the easy copying and dissemination that follows, copyright is no longer an isolationist endeavor.

The recent seminal Supreme Court case Eldred v. Ashcroft, (13) testing the power of the Copyright Clause to limit congressional power in the copyright domain, (14) recognized this new internationalization of copyright: the legislation at issue was upheld as rational in part because it harmonized U.S. law with E.U. law and because the Court did not want to interfere with Congress in the realm of copyright lest the United States be too constrained to "'play a leadership role' in the ... evolution of the international copyright system." (15) These rationales--repeated by lower courts--have largely been ignored by all but a handful of copyright scholars. (16) This Note picks up where Eldred left off, and considers what role the judiciary should play in limiting copyright legislation passed within an indisputably international web of multilateral treaties, bilateral agreements, and unilateral demands. Recognizing a congressional need to respond to the international climate ought not to mean--as Eldred intimates--allowing Congress unlimited discretion to adopt copyright laws with nominally international-looking rationales. …

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