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Judicial Review of Copyright Term Extension Legislation

2002; Loyola Marymount University; Volume: 36; Issue: 1 Linguagem: Inglês

0147-9857

Dennis S. Karjala,

Intellectual Property Law

In adopting the Sonny Bono Copyright Term Extension Act (CTEA), Congress acceded to the demands of noncreative heirs and assignees of old but unexpired copyrights for extension of the period of copyright protection by twenty years. This legislation thus allows these copyright owners twenty more years to collect royalties and control performance and dissemination of the covered works. At the same time, Congress extended the term prospectively for works created in the future. Both prospective and retroactive term extensions, but particularly the latter, raise the question of the scope of congressional power under Article I, Section 1, Clause 8 of the Constitution (the “Intellectual Property Clause”). Specifically, does such legislation conflict with the congressional power “to promote the Progress of Science” and does it ignore the constitutional restriction on that power mandating that exclusive rights granted under the Clause endure only for “limited Times”? Lurking beneath these substantive issues of constitutional law, however, is the question of who decides them. Congress, evidently, has made the decision that the CTEA comports with its powers under