Copyright

Copyright The Constitution empowers Congress “[t]o promote the Progress of Science … by securing for limited Times to Authors … the exclusive Right to their … Writings.” Long described simply as the law of literary property, today copyright law affords to creators not only of most literary, musical and artistic works, but also of architectural works and computer software and databases, a limited monopoly on the use of the products of their minds—a powerful incentive to create.

The foundational decision was Wheaton v. Peters (1834), in which the Supreme Court, denying claimed ownership of its opinions by the Court's own Reporters of Decisions, held that copyright exists primarily to benefit the public rather than authors or assigns.

At times, the Court has struggled when asked to extend copyright protection to new technologies, for example, piano rolls (White‐Smith v. Apollo, 1908) and VCRs (Sony v. Universal City Studios, 1984). The risk of failing to provide protection in such instances, observed Justice Oliver Wendell Holmes, Jr. (concurring in White‐Smith), is that the result may accord copyright “less scope than its rational significance and the ground on which it is granted seem … to demand” (p. 19).

In general, the Court has displayed marked flexibility in interpreting key terms of the Copyright Clause, for example, by recognizing photographs as “Writings” (Burrow Giles Lithographic v. Sarony, 1884) and corporations as “Authors” (Bleistein v. Donaldson Lithographing, 1903), as well as by deferring to Congress in approving repeated extensions of the “limited Times” for which copyright may be granted (Eldred v. Ashcroft, 2003).

Overall, however, the dominant themes in the Court's copyright jurisprudence have been promoting the general welfare and protecting the public domain, including recognizing statutory limitations on copyright grants (Wheaton, supra), according protection for expression but not underlying ideas (Baker v. Selden, 1880), declaring that the first sale of a copy of a work precludes the copyright owner from controlling future sales of that copy (Bobbs‐Merrill v. Straus, 1908), reaffirming constitutional minima for protectible authorship (Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 1991), and implementing the fair use doctrine to assure reasonable use of protected matter by subsequent authors (Campbell v. Acuff‐Rose Music, 1994).

In the twenty‐first century, as technologies for creating and distributing works expand rapidly along with economic pressures on Congress to protect copyright owners, the Court's challenge, as always, will be to subject both to the overriding public purposes of copyright envisioned by the Founders.

Craig Joyce