ABSTRACT

Two fundamental issues arising from the language of the Copyright- Patent Clause of the Constitution are (1) the limits, if any, the stated purpose of copyright in the Constitution — “To promote the Progress of Science” — places on the statutes Congress may enact, and (2) when is the Constitu- tion’s “limited Times” restriction on the duration of copyright protection exceeded. As copyright protection prevents some duplications, transmis- sions and performances of copyrighted works, and deriving new works from existing copyrighted works, the constitutional intersection of the Copy- right Clause and the First Amendment likewise cannot be avoided. In the past decade, the Supreme Court has decided two cases that arose at the con- fluence of these issues: Eldred v. Ashcroft in 2003 upholding a twenty-year increase in the term of existing copyrights, and Golan v. Holder in 2012 upholding copyright protection for many foreign works previously in the public domain in the United States.

This article examines the opinions and dissents in these cases and then discusses some problems, concerns, and alternatives that these decisions leave in their wake.