Robert H. Henry

“ In sum, "copyright's built-in free speech safeguards," Eldred, 537 U.S. at 221, are designed to govern the distribution of rights between authors and the public from the moment a work is created and copyrighted until the copyright expires. This design presumes that some rights are properly reserved for the author who has never relinquished his right to exploitation. Once a work has entered the public domain, however, neither the author nor the author's estate possesses any more right to the work than any member of the general public. ”

“ By removing works from the public domain, § 514 arguably hampers free expression and undermines the values the public domain is designed to protect. See Meade, 27 Fed. Cl. at 372 ("Extending copyright protection to a heart-shaped picture of earth effectively would grant the copyright holder a monopoly over the innumerable ways of expressing this picture. Allowing this picture to remain in the public domain for all artists to interpret freely, however, will foster creativity by ensuring that future mapmakers and artists have an ample store of ideas on which to build their works.") ”

“ As the Kahle court reasoned, "the outer boundary of 'limited Times' is determined by weighing the impetus provided to authors by longer terms against the benefit provided to the public by shorter terms. That weighing is left to Congress, subject to rationality review." Kahle, 487 F.3d at 701. This rationale is clearly consistent with Eldred. See 537 U.S. at 204 (reviewing the CTEA merely to determine "whether it is a rational exercise of the legislative authority conferred by the copyright clause") . ”

“ First, the Court concluded that copyright law's "built-in First Amendment accommodations" the idea/expression dichotomy and fair use defense adequately protected the First Amendment interests at stake. Id. at 219. Second, the Court reasoned that the plaintiffs had only a trivial interest in the copyrighted works because " [t] he First Amendment securely protects the freedom to make or decline to make one's own speech; it bears less heavily when speakers assert the right to make other people's speeches." ”

“ Originality is a constitutional requirement.") . In addition, a copyright must be limited in duration. Dastar, 539 U.S. at 37 (noting that Congress cannot "create [] a species of perpetual . . . copyright") . The rationale underlying this limitation is that an infinite copyright would deprive the public of the benefit -- the right to use and enjoy the expression -- that it is supposed to receive in exchange for the grant of monopoly privileges to the author for a discrete period of time. ”

“ See id. at 33-34 ("The rights of a . . . copyright holder are part of a carefully crafted bargain under which, once the . . . copyright monopoly has expired, the public may use the . . . work at will and without attribution.") (internal citation and quotation marks omitted) .
The Supreme Court has recognized that the First Amendment can limit Congress's power under the Copyright Clause. Eldred, 537 U.S. at 219-21 (indicating that copyright acts are not "categorically immune from challenges under the First Amendment") (internal quotation marks omitted) . ”

“ In addition to these distinctions, the Eldred Court observed that while patents "prevent full use by others of the inventor's knowledge," "copyright gives the holder no monopoly on any knowledge." 537 U.S. at 217. We further note that the language plaintiffs cite from Graham is taken from a discussion about the Progress Clause in the context of conditions for patentability. ”

“ We also note that at oral argument, Professor Lessig claimed that the experience of other countries, such as the United Kingdom, suggests that the United States could comply with the Berne Convention through less restrictive means. ”

“ Irwin Karp, Final Report, Berne Article 18 Study on Retroactive United States Copyright Protection for Berne and Other Works, 20 COLUM.-VLA J.L. & Arts 157, 178 (Winter 1996) (quoting “The Copyright (Application to Other Countries) Order in Council 988”; June 13, 1989, Article 7 (2) , reprinted in Copyright Laws and Treaties of the World, UK: Item 7c, at 2 (Unesco Supp. 1989-1990) . Under the British, Canadian, Australian, and Indian systems, “the reliance party is allowed to continue making those uses of the work it had made, or incurred commitments to make, before its copyright is restored. ”

“ If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain, of the country where the protection is claimed, that work shall not be protected anew [.] ↑ An author must still include notice in order to defend against “innocent infringer [s] .” GORMAN, supra, at 91.↑ Interestingly, during the Eldred oral argument, Justice Souter asked then-Solicitor General Olsen whether the Copyright Clause combined with the Necessary and Proper Clause could justify the extension of monopoly privileges to a “copyright that expired yesterday.” ”

“ It neither provides exceptions for "libraries, archives and similar institutions," nor exemptions for "small businesses, restaurants and like entities from having to pay performance royalties." 17 U.S.C. § 108 (h) . ”