Dallon on the Original Intent of the IP Clause

Craig W. Dallon (Creighton University School of Law) has posted Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets it Right (Saint Louis University Law Journal, Vol. 50, 2006) on SSRN.  Here is the abstract:

In Eldred v. Ashcroft, 537 U.S. 186 (2003), the Supreme Court construed the Copyright Clause of the Constitution and affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (the “CTEA”). The Court held that Congress acted within its power under the Copyright Clause when it extended by twenty years the terms of existing copyrights. This article analyzes the historical evidence of the Framer's intent as it concerned the Copyright Clause and concludes that the result in Eldred comports with the original intent of the Copyright Clause. The Copyright Clause is a grant of power, intended to assure Congress's power to enact copyright legislation protecting copyright owners. It was not an effort to limit existing monopolies or to restrict existing copyrights. The clause does not mandate careful judicial scrutiny of each copyright statutory amendment to determine whether each amendment promotes the progress of science. The article looks at prior Supreme Court copyright cases and concludes that the result in Eldred is consistent with the principles of those prior cases construing the Copyright Clause broadly and allowing Congress substantial discretion.

The article does note three shortcomings of the Eldred decision. First, it questions Eldred's language apparently diminishing the public interest rationale of copyrights in favor of a private interest based theory of copyrights. Second, it rejects the Court's acceptance of and response to the “quid pro quo” argument advanced by petitioners. Finally, it cautions against over reliance upon historical congressional practices as support for constitutional interpretation. The article concludes, however, that the Eldred decision correctly held that Congress had the power under the Copyright Clause to enact the CTEA.