In a recent blogpost, I mentioned the current dispute over the Sonny Bono Copyright Term Extension Act, which provided for the extension of existing copyright terms by an additional 20 years from the terms set by the 1976 Copyright Act. The Supreme Court is considering this issue in Eldred v. Ashcroft. The argument is that Congress’s extension of copyright terms is unconstutional because this violates the Constitution’s provision that Congress can grant copyright for “limited times”. (“The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, Sec. 8 ) I’m sympathetic to the argument, especially because of my doubts as to the legitimacy of federal copyright law, but am doubtful the Supremes will overturn the law.
However, what is interesting to me is the inconsistency shown by those opposing the copyright term extension based on the Constitutional language of Art. I, Sec. 8, giving Congress power to grant authors exclusive rights to their writins, for limited times. What is inconsistent, indeed a bit hypocritical, is this. Most lawyers today accept the propaganda spoonfed to them by democratic-socialist law professors and judges that Congress has very broad, almost plenary, power to legislate on virtually anything so long as it “affects commerce”. That is, Congress’s authorization to “regulate commerce” is construed by the courts, ever since Wickard v. Filburn and the New Deal era, to authorize federal statutes that are NOT otherwise specifically authorized in the constitutional text.
By this language, suppose there had been no provision about patents and copyrights at all. It is beyond doubt that the patent and copyright acts would be upheld as constitutional now, because they regulate activities that “affect commerce”. Just as there is a federal Lanham Act creating federal trademark rights, even though there is no specific grant of authority for Congress to legislate federal trademark rights. And lo and behold, the trademark rights are (potentially) unlimited in term.
Now, just because Art. I, Sec. 8, gives Congress authority to grant copyright for limited times, this does not mean they do NOT have the power, under other provisions (such as the interstate commerce clause), to grant copyright for UNlimited times. (For a brief mention of the resort to the interstate commerce power as a justification for copyright law, see this article, at text near footnote 33.)
Now personally, I believe the entire commerce-clause jurisprudence to be a dishonest mockery of the rule of law, and that 99% of all federal legislation is prima facie unconstitutional for this reason. However, most modern attorneys agree readily with the makeweight argument of Wickard v. Filburn. And for them, I see no basis for their criticism of federal statutes authorizing even unlimited copyright terms.