Academic journal article Harvard Law Review

Copyright Reform and the Takings Clause

Academic journal article Harvard Law Review

Copyright Reform and the Takings Clause

Article excerpt

Over the last fifteen years, there has been a marked uptick in scholarly and popular calls for the reform, or even the replacement, of the copyright system. (1) Notable academic proposals include reintroducing copyright formalities (like mandatory registration with the Copyright Office), (2) shortening the copyright term, (3) and replacing copyrights with a system of rewards for authors. (4) Politicians have also entered the mix: in 2012, a House Republican study group proposed several fairly radical reforms (which were quickly withdrawn). (5)

Today, the prospects for reform are uncertain. (6) But if they ever do become law, many reforms would have to be applied to existing copyrights to fully realize their ambitions, thus having a retroactive effect on current copyright holders. Take two such reforms: shortening the copyright term and reintroducing formalities. One purpose animating both is to place older works (especially so-called orphan works, whose owners are hard to locate) into the public domain sooner, thus preventing tangles of copyright entitlements from ensnarling the distribution, archiving, and creative reuse of those works. (7) The current copyright term is the life of the author plus seventy years; (8) if these reforms were applied only to future works, they would take an exceedingly long time to achieve their goals.

Applying copyright reforms to existing copyrights raises difficult constitutional questions. This Note will consider the constitutionality of three reforms under the Supreme Court's takings jurisprudence: shortening the copyright term, eliminating authors' termination rights, and reintroducing copyright formalities. However, the Note's conclusions are necessarily tentative for two reasons. First, its analysis is incomplete because it does not consider the Due Process Clause. (9) Second, and probably more importantly, the Court's takings jurisprudence is notoriously uncertain even as applied to real property, (10) let alone copyrights.

The question is particularly hard because the Takings Clause implications of these particular reforms are largely unexplored. Copyright scholars have briefly discussed takings issues surrounding other reforms (11) and have expressed concern that applying Takings Clause scrutiny to intellectual property might inhibit legal change. (12) Several scholars have addressed the issue of whether government infringement of patents and copyrights is a taking. (13) Finally, in the aftermath of Eldred v. Ashcroft (14) and Golan v. Holder (15) (which upheld Congress's power, respectively, to retroactively extend the copyright term and to "restore" copyrights in certain foreign works that were in the public domain), there has been some online commentary asking whether Congress could, consistent with the Takings Clause, reverse itself. (16)

This Note will proceed in four parts. Part I gives an overview of Takings Clause jurisprudence. Part II argues that copyrights are "property" within the meaning of the Takings Clause, but a form of property enjoying less powerful protection than real property does and which should not be subject to per se rules. Part III considers the Takings Clause implications of shortening the copyright term. It argues that shortening the copyright term is probably constitutional, provided that Congress allows for a "grace period": that is, a minimum period that every existing copyright will last after the reform legislation is implemented. Part IV considers two other potential reforms--eliminating termination rights and reintroducing copyright formalities--and concludes that both are constitutional.


The Fifth Amendment provides that "private property [shall not] be taken for public use, without just compensation." (17) The usual justification for this provision is fairness: government should not require "some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. …

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