SCHEDULED FOR ORAL ARGUMENT OCTOBER 5, 2000
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IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 99-5430
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JANET RENO, In her official capacity as Attorney General,
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Defendant/Appellee.
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
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BRIEF FOR THE APPELLEE
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DAVID W. OGDEN
Acting Assistant Attorney General
WILMA A. LEWIS
United States Attorney
WILLIAM KANTER
ALFRED MOLLIN
(202) 514-0236
Attorneys, Appellate Staff
Civil Division, Room 9554
Washington, D.C. 20530-0001
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Eldred v. Reno: Response brief of US
CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES
Pursuant to Federal Rule of Appellate Procedure 28(b) and Circuit Rule
28(a)(4), the appellee, Janet Reno, states as follows:
All parties appearing before the district court and in this Court are listed in
the Brief for the Appellants.
References to the rulings at issue appear in the Brief for the Appellants.
The related cases are set forth in the Brief for the Appellants.
Eldred v. Reno: Response brief of US
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The Copyright Term Extension Act, 17 U.S.C. § 304
The Copyright Term Extension Act of 1995, Hearing
before the Committee on the Judiciary, S. Hrg. 104-817,
104th Cong. 1st Sess. 113 (Sept. 20, 1995)
S. Rep. No. 315, 104th Cong., 2d Sess July 10, (1996)
Extending the Duration of Copyright Protection in
Certain Cases: Hearing Before Subcomm. No. 3 of the
Comm. on the Judiciary, 87th Cong. 12 (1962)
The Berne Convention for the Protection of Literary and
Artistic Works, Sept. 9, 1886, completed Paris, May 4,
1896, revised Berlin, Nov. 13, 1908, l L.N.T.S. 217,
completed Berne, Mar. 20, 1914, revised Rome, June 2,
1928, 123 L.N.T.S. 233, revised Brussels, June 26
Brussels, June 26, 1948, 33 U.N.T.S. 217, revised
Stockholm, July 14, 1976, 828 U.N.T.S. 221, revised
Paris, July 24, 1971 U.N.T.S., 943 U.N.T.S. 178
Eldred v. Reno: Response brief of US
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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JANET RENO, In her official capacity as Attorney General,
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BRIEF FOR THE APPELLEE
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STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Whether Congress violated the Copyright and Patent Clause of the United
States Constitution by extending the copyright protection of works with subsisting
2. Whether Congress violated the First Amendment by extending the term of
copyright protection for works with subsisting copyrights as well as newly created
Eldred v. Reno: Response brief of US
The relevant statutes are reproduced in the addendum to this brief.
The Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112
Stat. 2827 (1998) (“CTEA”), amended existing copyright law by extending the
term of copyright protection by an additional 20 years. This protection was
extended both to subsisting copyrights as well as copyrights acquired on newly
Plaintiffs are individuals and organizations who allege that they would have
made use, both commercial and non-commercial, of some of the copyrighted
material that would have entered the public domain but for the CTEA’s term
Plaintiffs brought this action for declaratory and injunctive relief, arguing,
among other things, that the CTEA’s term extensions to subsisting copyrights
exceeded the powers granted to Congress in the Copyright and Patent Clause of the
United States Constitution./1In addition, plaintiffs argued that the CTEA’s term
extensions as to all classes of copyrights violated the First Amendment.
The Government filed a motion for judgment on the pleadings. Plaintiffs filed
a motion for judgment on the pleadings, or, in the alternative, for summary
judgment. The District Court granted the Government’s motion and denied
Plaintiffs’ motion, holding that extending the term of subsisting copyrights is within
1/Plaintiffs raised two additional arguments below, one concerning the Copyright Clause’s reference to “Authors,”
and one concerning the Public Trust doctrine. Both arguments were rejected by the district court. J.A. 77-78.
Eldred v. Reno: Response brief of US
Congress’ powers under the Copyright Clause. Plaintiffs’ First Amendment
arguments were rejected on the ground that this Court “has ruled definitively that
there are no First Amendment rights to use the copyrighted works of others.”/2
A. History Of Copyright Duration.
The Nation’s copyright laws have adopted 5 different terms of protection for
copyrights, each change increasing the duration of the term of protection. These
terms were set at 28 years beginning in 1790; 42 years beginning in 1831; 56 years
beginning in 1909; approximately 75 years beginning in 1976; and approximately
95 years beginning in 1998./3In each change, subsisting copyrights also received
the benefit of extended terms.
1. Act of 1790.The Statute of Anne, enacted in England in 1710, protected
certain classes of authors for two 14 year terms, provided the author survived the
first term./4Under the Articles of Confederation, 12 of the 13 states had modeled
These arguments were not raised in the Appellant’s Brief (“App. Br.”), and no further reference to them is made in
this brief.
J.A. 76 (quoting UnitedVideo v. FCC,890 F.2d 1173, 1191 (D.C. Cir. 1989)).
3/The 1976 and 1998 laws changed calculation to the life of the author plus terms of 50, then 70 years. Terms of
life plus a fixed term can be compared to fixed terms. A 1961 Report to Congress by the Register of Copyrights
sets out statistical data for the period 1930 through 1955, reflecting that the “average span between [the author’s]
median age at publication and age at death” is 20 years. Therefore, the Register concluded that a term of life plus 50
years would roughly correspond with a fixed term of 70 years. The Report also suggested that an additional six years
should be added to compensate for the increase in life expectancy during the period since the data was collected.
Therefore, life plus 50 years is approximately equal to a 75 year fixed term; life plus 70, a 95 year term. Report of
the Register of Copyrights on the General Revision of U.S. Copyright Law, House Comm. on the Judiciary, 87th
Cong. 1st Sess. (Comm. Print July 1961), at 50.
4/8 Anne, ch. 19, 1710.
Eldred v. Reno: Response brief of US
copyright acts on the Statute of Anne. However, 6 states did not follow the Statute
of Anne in either the number or length of the terms of protection./5
The first federal copyright statute, also modeled on the Statute of Anne, was
enacted by Congress in 1790. The statute provided copyright protection for an
initial period of 14 years, and , if the author were a U.S. citizen still living at the
expiration of the initial 14 year term,a further term of 14 years./6The statute
extended the same terms of protection both to newly created works and to works
with subsisting copyrights./7
In 1831, Congress increased the initial term of
copyrights from 14 to 28 years. The additional renewal period remained 14 years,
making the total potential life of the copyright 42 years./8The House Judiciary
Committee’s Report explained that the change was intended “to place authors in
this country more nearly on an equality with authors in other countries.”/9
Congress noted that most European nations, including England, had adopted much
longer periods of protection for copyrighted works, and that the United States was
“very far behind” other countries in protecting intellectual property./10
5/James J. Guinan,Duration of Copyright, Copyright Office Study No. 30, Subcomm. on Patents, Trademark, and
Copyrights of the Senate Comm. on the Judiciary, 86th Cong. 2d Sess., COPYRIGHT LAW REVISION
STUDIES 1 (1 Comm. Print 1960)
6/Act of May 31, 1790, §§ 1 and 3, 1 Stat. 124-125.
7/Act of May 31, 1790, § 1.
8/Act of Feb. 3, 1831, § 1-2, 4 Stat. 436.
9/7 Register of Debates in Congress, 21st Cong. 2d Sess., App. CXIX (Dec. 17, 1830).
10/Act of Feb. 3, 1831, §1-2.
Eldred v. Reno: Response brief of US
The 1831 statute, like its predecessor, also extended terms of subsisting
copyrights./11The statute amended the Copyright Act to permit copyrights to be
renewed for an additional 14 year term if either the author or the author’s widow or
children were still living upon the expiration of the initial 28 year term./12The 1831
Act expressly made the extended copyright term applicable to pre-existing works
with copyrights that had not yet expired./13
The duration provisions of the Act of 1831 remained
largely unchanged until 1909, when Congress enacted a comprehensive revision of
the copyright laws./14The 1909 Act left the initial copyright term unchanged at 28
years, and extended the renewal period from 14 to 28 years, making the maximum
term of copyright protection 56 years./15It permitted copyrights to be renewed and
extended by the author or his heirs./16The longer renewal term was applied both to
works yet to be published and to pre-existing works with subsisting copyrights./17
4. The Copyright Act of 1976.
In 1976, Congress fundamentally altered the method of computing copyright
terms by adopting a basic copyright term for individual authors measured by the life
13/Act of Feb. 3, 1831, ¶ 16.
14/Act of March 4, 1909, 35 Stat. 1075-1088.
Id.,§ 23.
Eldred v. Reno: Response brief of US
of the author plus fifty years./18A basic term of copyright protection equal to the
life of the author plus 50 years had been recommended for members of the Berne
Convention;/19itbecame mandatory for Berne Convention members in 1948, and
“by 1976 had been adopted by a substantial majority of foreign nations.”/20
the basic term was to be computed from the author’s death, special provisions were
needed to “deal with cases where the authorship is not revealed or where the
‘author’ is not an individual.”/21Accordingly, section 302 of the Act provided a
term of 75 years from first publication or 100 years from creation, whichever is
shorter, for anonymous works, pseudonymous works, and works made for hire./22
The House Judiciary Committee’s Report explained that, “[i]n general, the terms in
these special cases approximate, on the average, the term of the life of the author
plus 50 years established for other works.”/23
The 1976 Act afforded parallel extended protection to subsisting copyrights.
A maximum term of 75 years after publication was adopted for pre-1978 works
with subsisting copyrights, including an initial term of 28 years and a renewal period
18/Pub. L. No. 94-553 § 301, 90 Stat. 2541, 2572 (1976).
19/The Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, completed Paris, May
4, 1896, revised Berlin, Nov. 13, 1908, l L.N.T.S. 217, completed Berne, Mar. 20, 1914, revised Rome, June 2,
1928, 123 L.N.T.S. 233, revised Brussels, June 26 Brussels, June 26, 1948, 33 U.N.T.S. 217, revised Stockholm,
July 14, 1976, 828 U.N.T.S. 221, revised Paris, July 24, 1971 U.N.T.S., 943 U.N.T.S. 178 (“Berne Convention”)
20/ H. R. Rep. N. 94-1476, 94th Cong. 2d Sess. 135 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5751. At
that time, most of the developed and industrialized countries, with the exception of the United States, belonged to
Berne. See Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986
321 (Centre for Commercial Law Studies Queen Mary College 1987)
21/Id., 5753.
22/Pub. L. 94-553 at § 302(c).
23/H. Rep. No. 94-1476 at 138, reprinted in1976 U.S.C.C.A.N. 5659, 5754.
comparability of these terms to life terms.
Seenote 3, supra, concerning the
Eldred v. Reno: Response brief of US
of 47 years./24The Report of the House Judiciary Committee reflects that the fixed
term of years (rather than the life plus 50 year standard) was retained for pre-1978
works with subsisting copyrights because “[a] great many of the present
expectations in these cases are the subject of existing contracts, and it
would be unfair and immensely confusing to cut off or alter these interests.”/25The
extended period of protection, like other rights associated with a copyright, are
vested in the author unless and until there has been a valid transfer of ownership of
the copyright by the author./26
On October 29, 1993, the European Union “EU”, a
consortium of European nations, issued a Directive on Term that was intended to
harmonize the terms of copyrights among member countries of the EU./27The
Directive required each member country of the EU to implement a basic copyright
term equal to life of the author plus 70 years, thus extending the previous
international standard embodied in the Berne Convention by 20 years./28The
Directive also required member countries of the EU to adopt a “rule of the shorter
24/Pub. L. No. 94-553, 90 Stat. 2572 at § 304.
26/17 U.S.C. § 201(a) and (d). Even if the copyright had previously been transferred, the 1976 Act incorporated a
special provision designed to ensure that, wherever feasible, authors and their families, rather than transferees, would
have the opportunity to benefit from the year extension of the renewal period for pre-1978 works. Specifically, the
statute created a right of termination under which the author, or certain designated surviving members of the author’s
family, may terminate a prior transfer of a copyright effective at the end of the original 56 year term. Pub. L. No.
94-553, 90 Stat. 2574-2575 at § 304(c). The termination right was granted for all pre-1978 works with subsisting
copyrights other than copyrights in works made for hire. Id.
27/ The Copyright Term Extension Act of 1995, Hearing before the Committee on the Judiciary, S. Hrg. 104-817,
104th Cong. 1st Sess. at 11 (Sept. 20, 1995) (“Senate CTEA Hearing”) (Statement of Marybeth Peters, Register of
Copyrights).
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