Stephen Breyer

“ Those who claim that significant copyright-related benefits flow from greater international uniformity of terms point to the fact that the nations of the European Union have adopted a system of copyright terms uniform among themselves. And the extension before this Court implements a term of life plus 70 years that appears to conform with the European standard. But how does “uniformity” help to justify this statute? ”

“ The older the work, the less likely it is that a sense of authors’ rights can justify a copyright holder’s decision not to permit reproduction, for the more likely it is that the copyright holder making the decision is not the work’s creator, but, say, a corporation or a great-grandchild whom the work’s creator never knew. ”

“ The Court itself finds no evidence to the contrary. It refers to testimony before Congress (1) that the copyright system’s incentives encourage creation, and (2) (referring to Noah Webster) that income earned from one work can help support an artist who “‘continue [s] to create.’” Ante, at 208, n.15. But the first of these amounts to no more than a set of undeniably true propositions about the value of incentives in general. And the applicability of the second to this Act is mysterious. How will extension help today’s Noah Webster create new works 50 years after his death? ”

“ And I make this assumption only to emphasize the lack of rational justification for the present statute. A desire for “parity” between A (old copyrights) and B (new copyrights) cannot justify extending A when there is no rational justification for extending B. At the very least, (if I put aside my rationality characterization) to ask B to support A here is like asking Tom Thumb to support Paul Bunyan’s ox. Where the case for extending new copyrights is itself so weak, what “justice,” what “policy,” what “equity” can warrant the tolls and barriers that extension of existing copyrights imposes? ”

“ And the third fact—that adults are having children later in life—is a makeweight at best, providing no explanation of why the 1976 Act’s term of 50 years after an author’s death—a longer term than was available to authors themselves for most of our Nation’s history—is an insufficient potential bequest. ”

“ The Constitution’s Copyright Clause grants Congress the power to “promote the Progress of Science...by securing for limited Times to Authors...the exclusive Right to their respective Writings.” Art. I, § 8, cl. 8 (emphasis added) . The statute before us, the 1998 Sonny Bono Copyright Term Extension Act, extends the term of most existing copyrights to 95 years and that of many new copyrights to 70 years after the author’s death. ”

“ Under these assumptions, if an author expects to live 30 years after writing a book, the copyright extension (by increasing the copyright term from “life of the author plus 50 years” to “life of the author plus 70 years”) increases the author’s expected income from that book—i.e., the economic incentive to write—by no more than about 0.33%. ”

“ No potential author can reasonably believe that he has more than a tiny chance of writing a classic that will survive commercially long enough for the copyright extension to matter. After all, if, after 55 to 75 years, only 2% of all copyrights retain commercial value, the percentage surviving after 75 years or more (a typical pre-extension copyright term) —must be far smaller. ”

“ It will likely restrict traditional dissemination of copyrighted works. It will likely inhibit new forms of dissemination through the use of new technology. It threatens to interfere with efforts to preserve our Nation’s historical and cultural heritage and efforts to use that heritage, say, to educate our Nation’s children. It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who own existing copyrights. But I cannot find any constitutionally legitimate, copyright-related way in which the statute will benefit the public. ”

“ C What copyright-related benefits might justify the statute’s extension of copyright protection? First, no one could reasonably conclude that copyright’s traditional economic rationale applies here. The extension will not act as an economic spur encouraging authors to create new works. See Mazer, 347 U.S., at 219 (The “economic philosophy” of the Copyright Clause is to “advance public welfare” by “encourag [ing] individual effort” through “personal gain”) ; see also ante, at 212, n.18 (“ [C] opyright law serves public ends by providing individuals with an incentive to pursue private ones”) . ”

“ The potential users of such works include not only movie buffs and aging jazz fans, but also historians, scholars, teachers, writers, artists, database operators, and researchers of all kinds—those who want to make the past accessible for their own use or for that of others. The permissions requirement can inhibit their ability to accomplish that task. Indeed, in an age where computer-accessible databases promise to facilitate research and learning, the permissions requirement can stand as a significant obstacle to realization of that technological hope. ”

“ A second, equally important, cause for concern arises out of the fact that copyright extension imposes a “permissions” requirement—not only upon potential users of “classic” works that still retain commercial value, but also upon potential users of any other work still in copyright. Again using CRS estimates, one can estimate that, by 2018, the number of such works 75 years of age or older will be about 350,000. See Brief for Petitioners 7. ”

“ The text assumes that the extension creates a term of 95 years (the term corresponding to works made for hire and for all existing pre-1978 copyrights) . Under the economists’ conservative assumptions, the value of a 95-year copyright is slightly more than 99.8% of the value of a perpetual copyright. See also Tr. of Oral Arg. 50 (Petitioners’ statement of the 99.8% figure) . If a “life plus 70” term applies, and if an author lives 78 years after creation of a work (as with Irving Berlin and Alexander’s Ragtime Band) , the same assumptions yield a figure of 99.996%. ”

“ A rational legislature could not give major weight to an invisible, likely nonexistent incentive-related effect.
But if there is no incentive-related benefit, what is the benefit of the future uniformity that the statute only partially achieves? Unlike the Copyright Act of 1976, this statute does not constitute part of an American effort to conform to an important international treaty like the Berne Convention. See H.R. Rep. No. 94-1476, pp. 135–136 (1976) (The 1976 Act’s life-plus-50 term was “required for adherence to the Berne Convention”) ; S. Rep. No. ”

“ With respect to those works the American statute produces an extended term of 95 years while comparable European rights in “for hire” works last for periods that vary from 50 years to 70 years to life plus 70 years. Compare 17 U.S.C. §§ 302 (c) , 304 (a) – (b) with Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights, Arts. 1–3, 1993 Official J. Eur. Coms. (L 290) , pp. 11–12 (hereinafter EU Council Directive 93/98) . Neither does the statute create uniformity with respect to anonymous or pseudonymous works. ”

“ And the qualitative costs to education, learning, and research will multiply as our children become ever more dependent for the content of their knowledge upon computer-accessible databases—thereby condemning that which is not so accessible, say, the cultural content of early 20th-century history, to a kind of intellectual purgatory from which it will not easily emerge. ”

“ The CRS Report suggests a way to take account of both that likelihood and the related “decay” in a work’s commercial viability: Find the annual decay rate that corresponds to the percentage of works that become commercially unavailable in any given year, and then discount the revenue for each successive year accordingly. ”

“ It does so by “motivat [ing] the creative activity of authors” through “the provision of a special reward.” Sony, supra, at 429. The “reward” is a means, not an end. And that is why the copyright term is limited. It is limited so that its beneficiaries—the public—“will not be permanently deprived of the fruits of an artist’s labors.” Stewart v. Abend, 495 U.S. 207, 228 (1990) .
That is how the Court previously has described the Clause’s objectives. ”

“ B Conclusions regarding the economic significance of “works made for hire” are judgmental because statistical information about the ratio of “for hire” works to all works is scarce. Cf. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737–738, n.4 (1989) . But we know that, as of 1955, copyrights on “for hire” works accounted for 40% of newly registered copyrights. Varmer, Works Made for Hire and on Commission, Study No. 13, in Copyright Law Revision Studies Nos. ”

“ It finds added textual support in the word “Authors,” which is difficult to reconcile with a rationale that rests entirely upon incentives given to publishers perhaps long after the death of the work’s creator. Cf. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 346–347 (1991) .
It finds empirical support in sources that underscore the wisdom of the Framers’ judgment. See CRS Report 3 (“ [N] ew, cheaper editions can be expected when works come out of copyright”) ”

“ See, e.g., Kwall, Copyright and the Moral Right: Is an American Marriage Possible? 38 Vand. L. Rev. 1, 1–3 (1985) (moral rights) ; House Hearings 187 (testimony of the Register of Copyrights) (“limited [T] imes”) .
In sum, the partial, future uniformity that the 1998 Act promises cannot reasonably be said to justify extension of the copyright term for new works. ”