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Establishes the basis for Creative Commons licensing. All Creative Commons licenses assume copyright on the CC licenses exists.

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"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;"
--"The Constitution of the United States: A Transcription," National Archives, accessed February 3, 2023, https://www.archives.gov/founding-docs/constitution-transcript#toc-section-8-.

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Term of protection extended to 56 years.
--"Timeline: 1900-1950" U.S. Copyright Office, accessed February 3, 2023, https://www.copyright.gov/timeline/timeline_1900-1950.html#:~:text=The%20Copyright%20Act%20of%201909,copyright%20notice%20affixed%20on%20copies.

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The Copyright Act of 1909 (Public Law 60-349) was signed into law by President Theodore Roosevelt and went into effect on March 4, 1909. The 1909 act granted protection to works published with a valid copyright notice affixed on copies. Accordingly, unpublished works were protected by state copyright law, but published works without proper notice fell into the public domain. The copyright term remained at twenty-eight years with a renewal term of twenty-eight years, but the author was granted the right to terminate any transfer of his copyright between the initial and renewal term. The 1909 act also included the first compulsory mechanical license, allowing the reproduction of a musical composition without the consent of the copyright owner provided the person adhered to the provisions of the license.

The amendment of the 1909 act began shortly after its enactment, with the extension of copyright protection to motion pictures on August 24, 1912. Prior to that date, motion pictures had to register their works as a series of still photographs. Then, on January 1, 1953, recording and performing rights were extended to nondramatic literary works. Finally, on February 15, 1972, Congress extends federal protection to sound recordings fixed and first published after that date (leaving older sound recordings protected under state law).

The movement for general revision of the 1909 act began in 1955. Starting in 1962, Congress passed a series of nine acts that provided interim extensions for works whose copyright protection began between September 19, 1906, and December 31, 1918, if they were in their renewal terms. These extensions allowed copyright protection to continue while Congress undertook preparations for the next comprehensive copyright revision.

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Timeline 1900 - 1950 | U.S. Copyright Office

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The Copyright Act of 1909 (Public Law 60-349) was signed into law by President Theodore Roosevelt and went into effect on March 4, 1909. The 1909 act granted protection to works published with a valid copyright notice affixed on copies. Accordingly, unpublished works were protected by state copyright law, but published works without proper notice fell into the public domain.

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This was a major revision of the existing copyright law and established the framework of current copyright law. Term changed from a period of years to life of the author plus 50 years.
--"Copyright Law of the United States (Title 17), Preface," U.S. Copyright Office, accessed February 3, 2023, https://www.copyright.gov/title17/92preface.html.

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This publication contains the text of Title 17 of the United States Code, including all amendments enacted by Congress through October 17, 2022. It includes the Copyright Act of 1976 and all subsequent amendments to copyright law; the Semiconductor Chip Protection Act of 1984, as amended; and the Vessel Hull Design Protection Act, as amended. The Copyright Office is responsible for registering intellectual property claims under all three.

The United States copyright law is contained in chapters 1 through 8 and 10 through 12 of Title 17 of the United States Code. The Copyright Act of 1976, which provides the basic framework for the current copyright law, was enacted on October 19, 1976, as Pub. L. No. 94-553, 90 Stat. 2541. The 1976 Act was a comprehensive revision of the copyright law in Title 17. Listed below in chronological order of their enactment are the Copyright Act of 1976 and subsequent amendments to Title 17.

Chapters 9 and 13 of Title 17 contain two types of design protection that are independent of copyright protection. Chapter 9 of Title 17 is the Semiconductor Chip Protection Act of 1984 (SCPA), as amended. The SCPA was enacted as Title III of Pub. L. No. 98-620, 98 Stat. 3335, 3347, on November 8, 1984. Chapter 13 of Title 17 is the Vessel Hull Design Protection Act (VHDPA), as amended. The VHDPA was enacted on October 28, 1998, as Title V of the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860, 2905. Subsequent amendments to the Title 17 provisions for SCPA and the VHDPA are also included in the list below, in chronological order of their enactment.

In some cases, statutory enactments affecting copyright law are not codified in Title 17. For transitional and supplementary provisions that do not amend Title 17, see the appendices.

This edition adds one piece of copyright legislation enacted since the last printed edition of the circular in May 2021: the Artistic Recognition for Talented Students Act, signed into law in October 2022.

Shira Perlmutter
Register of Copyrights and Director of the United States Copyright Office

Statutory Enactments Contained in Title 17 of the United States Code

[Copyright Act of 1976], Pub. L. No. 94-553, 90 Stat. 2541 (for the general revision of copyright law, Title 17 of the United States Code, and for other purposes), October 19, 1976.

[Copyright Amendments], Pub. L. No. 95-598, 92 Stat. 2549, 2676 (amending §201(e), Title 17, United States Code, to permit involuntary transfer under the Bankruptcy Law), enacted November 6, 1978.

Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No. 97-180, 96 Stat. 91, 93 (amending §506(a), Title 17, United States Code, and Title 18 of the United States Code), enacted May 24, 1982.

[Copyright Amendments], Pub. L. No. 97-215, 96 Stat. 178 (amending the manufacturing clause in chapter 6, Title 17, United States Code), enacted July 13, 1982.

Semiconductor Chip Protection Act of 1984, Title III of Pub. L. No. 98-620, 98 Stat. 3335, 3347 (adding chapter 9, Title 17, United States Code, to provide design protection for semiconductor chips), November 8, 1984.

[Amendments to the Semiconductor Chip Protection Act of 1984], Pub. L. No. 100-159, 101 Stat. 899 (amending chapter 9, Title 17, United States Code, regarding protection extended to semiconductor chip products of foreign entities), enacted November 9, 1987.

Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, enacted October 31, 1988. (See Appendix Q for certain provisions of this Act that do not amend Title 17 of the United States Code.)

[Copyright Amendments], Pub. L. No. 100-617, 102 Stat. 3194 (extending for an additional eight-year period certain provisions of Title 17, United States Code, relating to the rental of sound recordings and for other purposes), enacted November 5, 1988.

Satellite Home Viewer Act of 1988, Title II of Pub. L. No. 100-667, 102 Stat. 3935, 3949, enacted November 16, 1988.

Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, 102 Stat. 4642, 4672 (amending §912, Title 17, United States Code), enacted November 19, 1988.

Copyright Fees and Technical Amendments Act of 1989, Pub. L. No. 101-318, 104 Stat. 287, enacted on July 3, 1990.

Copyright Royalty Tribunal Reform and Miscellaneous Pay Act of 1989, Pub. L. No. 101-319, 104 Stat. 290, enacted July 3, 1990.

Copyright Remedy Clarification Act, Pub. L. No. 101-553, 104 Stat. 2749, enacted November 15, 1990.

Visual Artists Rights Act of 1990, Title VI of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5128, enacted December 1, 1990.

Architectural Works Copyright Protection Act, Title VII of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5133, enacted December 1, 1990.

Computer Software Rental Amendments Act of 1990, Title VIII of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat 5089, 5134, enacted December 1, 1990.

Semiconductor International Protection Extension Act of 1991, Pub. L. No. 102-64, 105 Stat. 320 (amending chapter 9, Title 17, United States Code, regarding protection extended to semiconductor chip products of foreign entities), enacted June 28, 1991.

Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, 272 (amending chapter 3, Title 17, United States Code, as described immediately below and by deleting subsection 108(i)), enacted June 26, 1992. (Also, through an independent provision that does not amend Title 17 of the United States Code, the Act established the National Film Registry under Title II, which is the National Film Preservation Act of 1992.)

Copyright Renewal Act of 1992, Title I of the Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (amending chapter 3, Title 17, United States Code, by providing for automatic renewal of copyright for works copyrighted between January 1, 1964, and December 31, 1977), enacted June 26, 1992.

[Copyright Amendments], Pub. L. No. 102-492, 106 Stat. 3145 (amending §107, Title 17, United States Code, regarding unpublished works), enacted October 24, 1992.

[Copyright Amendments], Pub. L. No. 102-561, 106 Stat. 4233 (amending §2319, Title 18, United States Code, regarding criminal penalties for copyright infringement), enacted October 28, 1992.

Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat. 4237 (amending Title 17 of the United States Code by adding a new chapter 10), enacted October 28, 1992.

North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2114 and 2115 (amending §109, Title 17, United States Code, and adding a new §104A), enacted December 8, 1993.

Copyright Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198, 107 Stat. 2304 (amending, inter alia, chapter 8, Title 17, United States Code), enacted December 17, 1993.

Satellite Home Viewer Act of 1994, Pub. L. No. 103-369, 108 Stat. 3477 (amending, inter alia, §111 and §119, Title 17, United States Code, relating to the definition of a local service area of a primary transmitter), enacted October 18, 1994.

Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, 4973 (amending, inter alia, §104, Title 17, United States Code, and adding a new chapter 11), enacted December 8, 1994. (See Appendix R for the text of certain provisions of this Act that do not amend Title 17 of the United States Code.)

Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (amending, inter alia, §114 and §115, Title 17, United States Code), enacted November 1, 1995.

Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No. 104-153, 110 Stat. 1386, 1388 (amending §603(c), Title 17, United States Code, and §2318, Title 18, United States Code), enacted July 2, 1996.

Legislative Branch Appropriations Act, 1997, Pub. L. No. 104-197, 110 Stat. 2394, 2416 (amending, inter alia, Title 17, United States Code, by adding a new §121 concerning the limitation on exclusive copyrights for literary works in specialized format for the blind and disabled), enacted September 16, 1996.

[Copyright Amendments and Amendments to the Semiconductor Chip Protection Act of 1984], Pub. L. No. 105-80, 111 Stat. 1529 (making technical amendments to certain provisions of Title 17, United States Code), enacted November 13, 1997.

No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678, enacted December 16, 1997.

Sonny Bono Copyright Term Extension Act, Title I of Pub. L. No. 105-298, 112 Stat. 2827 (amending chapter 3, Title 17, United States Code, to extend the term of copyright protection for most works to life plus 70 years), enacted October 27, 1998.

Fairness in Music Licensing Act of 1998, Title II of Pub. L. No. 105-298, 112 Stat. 2827, 2830 (amending, inter alia, §110, Title 17, United States Code, and adding §513 to provide a music licensing exemption for food service and drinking establishments), enacted October 27, 1998.

Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2887 (Title IV amending §108, §112, §114, chapter 7, and chapter 8, Title 17, United States Code), enacted October 28, 1998. (This Act also contains four separate acts within Titles I, II, III, and V that amended Title 17 of the United States Code. These four acts are each separately listed below. See Appendix B for additional provisions of this Act that do not amend Title 17 of the United States Code.)

WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998, Title I of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2861 (amending Title 17 of the United States Code, inter alia, to add a new chapter 12 which prohibits circumvention of copyright protection systems and provides protection for copyright management information), enacted October 28, 1998.

Online Copyright Infringement Liability Limitation Act, Title II of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2877 (amending Title 17 of the United States Code to add a new §512), enacted October 28, 1998.

Computer Maintenance Competition Assurance Act, Title III of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2886 (amending §117, Title 17, United States Code), enacted October 28, 1998.

Vessel Hull Design Protection Act, Title V of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2905 (adding chapter 13, Title 17, United States Code, to provide design protection for vessel hulls), enacted October 28, 1998.

[Copyright Amendments and Amendments to the Vessel Hull Design Protection Act], Pub. L. No. 106-44, 113 Stat. 221 (making technical corrections to Title 17 of the United States Code), enacted August 5, 1999.

Satellite Home Viewer Improvement Act of 1999, Title I of the Intellectual Property and Communications Omnibus Reform Act of 1999, Pub. L. No. 106-113, 113 Stat. 1501, app. I (amending chapters 1 and 5 of Title 17 of the United States Code to replace the Satellite Home Viewer Act of 1994 and amending chapters 12 and 13 of Title 17), enacted November 29, 1999.

Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Pub. L. No. 106-160, 113 Stat 1774, (amending chapter 5 of Title 17 of the United States Code to increase statutory damages for copyright infringement), enacted December 9, 1999.

Work Made for Hire and Copyright Corrections Act of 2000, Pub. L. No. 106-379, 114 Stat. 1444 (amending the definition of works made for hire in Title 17 of the United States Code; amending chapter 7 of Title 17, including changing the language regarding Copyright Office fees; and making other technical and conforming amendments to Title 17), enacted October 27, 2000.

Intellectual Property and High Technology Technical Amendments Act of 2002, Division C, Title III, Subtitle B of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758, 1901 (making technical corrections both to Title 17, United States Code, and, as described in footnotes where appropriate, to Title I of the Intellectual Property and Communications Omnibus Reform Act of 1999, entitled the Satellite Home Viewer Improvement Act of 1999, Pub. L. No. 106-113, 113 Stat. 1501, app. I), enacted November 2, 2002.

Technology, Education, and Copyright Harmonization Act of 2002, Division C, Title III, Subtitle C of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758, 1910 (amending chapter 1, Title 17, United States Code, to incorporate provisions relating to use of copyrighted works for distance education), enacted November 2, 2002.

Small Webcaster Settlement Act of 2002, Pub. L. No. 107-321, 116 Stat. 2780 (amending chapter 1, Title 17, United States Code, to incorporate new language into section 114), enacted December 4, 2002.

Copyright Royalty and Distribution Reform Act of 2004, Pub. L. No. 108-419, 118 Stat. 2341 (revising chapter 8, Title 17, United States Code, in its entirety), enacted November 30, 2004.

Individuals with Disabilities Education Improvement Act of 2004, Title III, Pub. L. No. 108-446, 118 Stat. 2647, 2807 (amending section 121, Title 17, United States Code, to further expand authorized reproduction of copyrighted works for the blind or people with other disabilities), enacted December 3, 2004.

Satellite Home Viewer Extension and Reauthorization Act of 2004, Title IX, Division J of the Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 3393 (amending section 119, Title 17, United States Code, throughout and by extending for an additional five years the statutory license for satellite carriers retransmitting over-the-air television broadcast stations to their subscribers), enacted December 8, 2004.

Anti-counterfeiting Amendments Act of 2004, Title I of the Intellectual Property Protection and Courts Amendments Act of 2004, Pub. L. No. 108-482, 118 Stat. 3912 (amending section 2318, Title 18, United States Code, concerning trafficking in counterfeit or illicit labels in connection with stolen copyrighted works), enacted December 23, 2004.

Fraudulent Online Identity Sanctions Act, Title II of the Intellectual Property Protection and Courts Amendments Act of 2004, Pub. L. No. 108-482, 118 Stat. 3912, 3916 (amending section 504(c), Title 17, United States Code, to add language making it a criminal violation to knowingly provide false contact information for a domain name that is used in connection with copyright infringement when registering the domain name with authorities), enacted December 23, 2004.

Artists' Rights and Theft Prevention Act of 2005 (also known as the "ART Act"), Title I of the Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, 119 Stat. 218 (amending chapter 113, Title 18, United States Code, to add a new section 2319B authorizing criminal penalties for unauthorized recording of motion pictures; amending section 506(a), Title 17, United States Code, in its entirety; amending section 2319, Title 18,United States Code, by adding criminal penalties for section 506(a); amending section 408, Title 17, United States Code, by adding new language authorizing preregistration of works being prepared for commercial distribution; and directing the United States Sentencing Commission to establish policies and guidelines for intellectual property crimes), enacted April 27, 2005.

Family Movie Act of 2005, Title II of the Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, 119 Stat. 218, 223 (amending section 110, Title 17, United States Code, to add a new exemption from infringement for imperceptible skipping of audio and video content in motion pictures), enacted April 27, 2005.

Preservation of Orphan Works Act, Title IV of the Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, 119 Stat. 218, 226 (amending section 108(i), Title 17, United States Code, to add orphan works to the list of works that are exempt from certain limitations on uses by libraries and archives), enacted April 27, 2005.

Copyright Royalty Judges Program Technical Corrections Act, Pub. L. No. 109-303, 120 Stat. 1478 (to make clarifying and technical corrections to chapter 8, Title 17, United States Code, and related conforming amendments), enacted October 6, 2006.

Prioritizing Resources and Organization for Intellectual Property Act of 2008, Pub. L. No. 110-403, 122 Stat. 4256 (amending civil and criminal provisions in chapters 4, 5, and 6, Title 17, United States Code, and related provisions in Title 28, United States Code), enacted October 13, 2008.

Vessel Hull Design Protection Amendments of 2008, Pub. L. No. 110-434, 122 Stat. 4972 (amending definitions in section 1301), enacted October 16, 2008.

Webcaster Settlement Act of 2008, Pub. L. No. 110-435, 122 Stat. 4974 (amending section 114 to implement the webcaster settlement agreement), enacted October 16, 2008.

Webcaster Settlement Act of 2009, Pub. L. No. 111-36, 123 Stat. 1926 (amending section 114 to authorize 30-day negotiation period for webcasters and copyright holders), enacted June 30, 2009.

Department of Defense Appropriations Act, 2010, Pub. L. No. 111-118, 123 Stat. 3409 (amending section 119, Title 17, United States Code, to extend certain time periods to February 28, 2010, and to repeal section 4(a) of the Satellite Home Viewer Act of 1994), enacted December 19, 2009.

Temporary Extension Act of 2010, Pub. L. No. 111-144, 124 Stat. 42 (amending section 119, Title 17, United States Code, to extend certain time periods to March 28, 2010) enacted March 2, 2010.

Satellite Television Extension Act of 2010, Pub. L. No. 111-151, 124 Stat. 1027 (amending section 119, Title 17, United States Code, to extend certain time periods to April 30, 2010) enacted March 26, 2010.

Continuing Extension Act of 2010, Pub. L. No. 111-157, 124 Stat. 1116 (amending section 119, Title 17, United States Code, to extend certain time periods to May 31, 2010) enacted April 15, 2010.

Satellite Television Extension and Localism Act of 2010, Pub. L. No. 111-175, 124 Stat. 1218 (amending sections 111, 119, 122, 708, and 804 of Title 17, United States Code) enacted May 27, 2010.

Copyright Cleanup, Clarification, and Corrections Act of 2010, Pub. L. No. 111-295, 124 Stat. 3180 (making miscellaneous clarifying, conforming, and technical corrections throughout Title 17, United States Code, and section 2318, Title 18, United States Code, and repealing section 601, Title 17, United States Code) enacted December 9, 2010.

STELA Reauthorization Act of 2014, Pub. L. No. 113-200, 128 Stat. 2059 (amending sections 111, 119, 122 of Title 17, United States Code), enacted December 4, 2014.

Orrin G. Hatch-Bob Goodlatte Music Modernization Act, Pub. L. No. 115-264, 132 Stat. 3676 (amending sections 114, 115, 301, 801, 803, and 804, of Title 17, United States Code; adding chapter 14 to Title 17, United States Code; and amending section 137, of Title 28, United States Code), enacted October 11, 2018.

National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, 133 Stat. 1198 (amending section 105 of Title 17, United States Code), enacted December 20, 2019.

Library of Congress Technical Corrections Act of 2019, Title XIV of the Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, 133 Stat. 2534 (amending sections 701, 802, and 803 of Title 17, United States Code), enacted December 20, 2019.

Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (adding section 710 to Title 17, United States Code), enacted March 27, 2020.

Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, 134 Stat. 1182 (adding section 2319C to Title 18, United States Code, regarding criminal penalties for copyright infringement; adding chapter 15 to Title 17, United States Code), enacted December 27, 2020.

Artistic Recognition for Talented Students Act, Pub. L. No. 117-201, 136 Stat. 2222 (amending section 708 of Title 17, United States Code), enacted October 17, 2022.

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This publication contains the text of Title 17 of the United States Code, including all amendments enacted by Congress through October 17, 2022. It includes the Copyright Act of 1976 and all subsequent amendments to copyright law; the Semiconductor Chip Protection Act of 1984, as amended; and the Vessel Hull Design Protection Act, as amended.

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Multiple extensions of the copyright term and changes to copyright law that allows copyright to cover more and more materials erodes the concept of the public domain and the ability of creators to build upon others' works to "promote the progress of science and useful arts." Over time, less and less material gets into the public domain.

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The Web is today's technology that impacts creators and copyright. In the past, other technologies such as player piano rolls, motion pictures, radio broadcasting, and other mediums for creative work have challenged ideas surrounding copyright.

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At CERN, we probe the fundamental structure of particles that make up everything around us. We do so using the world's largest and most complex scientific instruments.

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Sonny Bono Copyright Term Extension Act (CTEA), 1998

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Sonny Bono Copyright Term Extension Act (CTEA), 1998

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Extends the term of copyright protection for most works to life plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever end is earlier.
--"Copyright Law of the United States (Title 17), Chapter 3: Duration of Copyright," U.S. Copyright Office, accessed February 3, 2023, https://www.copyright.gov/title17/92chap3.html.

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Chapter 3 - Circular 92 | U.S. Copyright Office

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Eric Eldred, an internet publisher represented by Lawrence Lessig, challenged the CTEA all the way to the U.S. Supreme Court, and lost. The decision affirmed the CTEA based on precedent in that previous changes to U.S. copyright law retroactively extended copyright protections.
--"Eldred v. Ashcroft," Wikipedia, accessed February 2, 2023, https://en.wikipedia.org/wiki/Eldred_v._Ashcroft.

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Eldred v. Ashcroft

Full case name
Eric Eldred, et al. v. John Ashcroft, Attorney General

Docket no.
01-618

Citations

537 U.S. 186 (more)

123 S. Ct. 769, 154 L. Ed. 2d 683, 71 U.S.L.W. 4052

Decision
Opinion

Prior

Eldred v. Reno, 74 F. Supp. 2d 1 ( D.D.C. 1999); aff'd, 239 F.3d 372 ( D.C. Cir. 2001); rehearing and rehearing en banc denied, 255 F.3d 849 (D.C. Cir. 2001); cert. granted, 534 U.S. 1126 (2002); order granting cert. amended, 534 U.S. 1160 (2002).

Subsequent

Rehearing denied, 538 U.S. 916 (2003).

20-year retroactive extension of existing copyright terms did not violate the Copyright Clause or the First Amendment of the Constitution.

Chief Justice

William Rehnquist

Associate Justices

John P. Stevens · Sandra Day O'Connor
Antonin Scalia · Anthony Kennedy
David Souter · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer

Majority

Ginsburg, joined by Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas

Dissent

Stevens

Dissent

Breyer

U.S. Const. Art. I, § 8, cl. 8; U.S. Const. amend. I; Copyright Term Extension Act of 1998

Eldred v. Ashcroft, 537 U.S. 186 (2003), was a decision by the Supreme Court of the United States upholding the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA). The practical result of this was to prevent a number of works from entering the public domain in 1998 and following years, as would have occurred under the Copyright Act of 1976. Materials which the plaintiffs had worked with and were ready to republish were now unavailable due to copyright restrictions.

Internet publisher Eric Eldred was the lead petitioner, and was joined by a group of commercial and non-commercial interests who relied on the public domain for their work (including Dover Publications) and many including the Free Software Foundation, the American Association of Law Libraries, the Bureau of National Affairs, and the College Art Association. Eldred was represented by Lawrence Lessig and a team at the Berkman Center for Internet and Society.

Supporting the law were United States Attorneys General Janet Reno and John Ashcroft, along with a set of including the Motion Picture Association of America, the Recording Industry Association of America, ASCAP and Broadcast Music Incorporated.

The Sonny Bono Copyright Term Extension Act (or CTEA) extended existing copyright terms by an additional 20 years from the terms set by the Copyright Act of 1976. The law affected both new and existing works (making it both a prospective extension as well as a retroactive one). Specifically, for works published before January 1, 1978 and still in copyright on October 27, 1998, the term was extended to 95 years. For works authored by individuals on or after January 1, 1978 (including new works), the copyright term was extended to equal the life of the author plus 70 years. For works authored by joint authors, the copyright term was extended to the life of the last surviving author plus 70 years. In the case of works-for-hire, anonymous or pseudonymous works, the term was set at 95 years from the date of first publication, or 120 years from creation.

The practical result of this was to prevent a number of works from entering the public domain in 1998 and following years, as would have occurred under the Copyright Law of 1976. Materials which the plaintiffs had worked with and were ready to republish were now unavailable due to copyright restrictions.

The lead petitioner, Eric Eldred, is an Internet publisher. Eldred was joined by a group of commercial and non-commercial interests who relied on the public domain for their work. These included Dover Publications, a commercial publisher of paperback books; Luck's Music Library, Inc. and Edwin F. Kalmus & Co., Inc., publishers of orchestral sheet music; and many including the Free Software Foundation, Tri-Horn International, Boston, Mass., a golf publishing & tech co., the American Association of Law Libraries, the Bureau of National Affairs, and the College Art Association.

Supporting the law were the U.S. government, represented by the Attorney General in an capacity (originally Janet Reno, later replaced by John Ashcroft), along with a set of including the Motion Picture Association of America, the Recording Industry Association of America, ASCAP and Broadcast Music Incorporated.

The original complaint was filed in the United States District Court for the District of Columbia on January 11, 1999. The plaintiffs' argument was threefold:

1. That by retroactively extending copyright terms, Congress had violated the requirements of the Constitution's Copyright Clause, which gives Congress the following 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

Plaintiffs argued that by reading this formulation so as to allow for any number of retroactive extensions, Congress could in practice guarantee an unlimited period of copyright protection, thus thwarting the intent of the clause.

2. That any copyright law must be subject to scrutiny under the First Amendment, thereby ensuring a balance between freedom of speech and the interests of copyright.

3. That the doctrine of public trust requires the government to show a public benefit to any transfer of public property into private hands, and that the CTEA violates this doctrine by withdrawing material from the public domain.

In response, the government argued that Congress does indeed have the latitude to retroactively extend terms, so long as the individual extensions are also for "limited times," as required by the Constitution. As an argument for this position, they referred to the Copyright Act of 1790, the first Federal copyright legislation, which applied Federal protection to existing works. Furthermore, they argued, neither the First Amendment nor the doctrine of public trust is applicable to copyright cases.

On October 28, 1999, Judge June Green issued a brief opinion rejecting all three of the petitioners' arguments. On the first count, she wrote that Congress had the power to extend terms as it wished, as long as the terms themselves were of limited duration. On the second count, she rejected the notion of First Amendment scrutiny in copyright cases, based on her interpretation of Harper and Row Publishers, Inc., v. Nation Enterprises, an earlier Supreme Court decision. On the third count, she rejected the notion that public trust doctrine was applicable to copyright law.

The plaintiffs appealed the decision of the district court to the United States Court of Appeals for the District of Columbia Circuit, filing their initial brief on May 22, 2000, and arguing the case on October 5 of the same year in front of a three-judge panel. Arguments were similar to those made in the district court, except for those regarding the public trust doctrine, which were not included in the appeal.

Instead, the plaintiffs extended their argument on the copyright clause to note that the clause requires Congress to "promote the Progress of Science and useful Arts," and argued that retroactive extensions do not directly serve this purpose in the standard quid pro quo previously required by the courts.

The case was decided on February 16, 2001. The appeals court upheld the decision of the district court in a 2-1 opinion. In his dissent, Judge David Sentelle agreed with the plaintiffs that CTEA was indeed unconstitutional based on the "limited Times" requirement. Supreme Court precedent, he argued, held that one must be able to discern an "outer limit" to a limited power; in the case of retrospective copyright extensions, Congress could continue to extend copyright terms indefinitely through a set of limited extensions, thus rendering the "limited times" requirement meaningless.

Following this ruling, plaintiffs petitioned for a rehearing (in front of the full panel of nine judges). This petition was rejected, 7-2, with Judges Sentelle and David Tatel dissenting.

On October 11, 2001, the plaintiffs filed a petition for certiorari to the Supreme Court of the United States. On February 19, 2002, the Court granted certiorari, agreeing to hear the case.

Oral arguments were presented on October 9, 2002. Lead counsel for the plaintiff was Lawrence Lessig; the government's case was argued by Solicitor General Theodore Olson.

Lessig focused the Plaintiffs' brief to emphasize the Copyright clause restriction, as well as the First Amendment argument from the Appeals case. The decision to emphasize the Copyright clause argument was based on both the minority opinion of Judge Sentelle in the appeals court, and on several recent Supreme Court decisions authored by Chief Justice William Rehnquist: United States v. Lopez (1996) and United States v. Morrison (2000).

In both of those decisions, Rehnquist, along with four of the Court's more conservative justices, held Congressional legislation unconstitutional, because that legislation exceeded the limits of the Constitution's Commerce clause. This profound reversal of precedent, Lessig argued, could not be limited to only one of the enumerated powers. If the court felt that it had the power to review legislation under the Commerce clause, Lessig argued, then the Copyright clause deserved similar treatment, or at very least a "principled reason" must be stated for according such treatment to only one of the enumerated powers.

On January 15, 2003, the Court held the CTEA constitutional by a 7-2 decision. The majority opinion, written by Justice Ginsburg, relied heavily on the Copyright Acts of 1790, 1831, 1909, and 1976 as precedent for retroactive extensions. One of the arguments supporting the act was the life expectancy has significantly increased among the human population since the 18th century, and therefore copyright law needed extending as well. However, the major argument for the act that carried over into the case was that the Constitution specified that Congress only needed to set time limits for copyright, the length of which was left to their discretion. Thus, as long as the limit is not "forever," any limit set by Congress can be deemed constitutional.

A key factor in the CTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.

The Supreme Court declined to address Lessig's contention that Lopez and Morrison offered precedent for enforcing the Copyright clause, and instead reiterated the lower court's reasoning that a retroactive term extension can satisfy the "limited times" provision in the copyright clause, as long as the extension itself is limited instead of perpetual. Furthermore, the Court refused to apply the proportionality standards of the Fourteenth Amendment or the free-speech standards in the First Amendment to limit Congress's ability to confer copyrights for limited terms.

Justice Breyer dissented, arguing that the CTEA amounted to a grant of perpetual copyright that undermined public interests. While the constitution grants Congress power to extend copyright terms in order to "promote the progress of science and useful arts", CTEA granted precedent to continually renew copyright terms making them virtually perpetual. Justice Breyer argued that it is highly unlikely any artist will be more inclined to produce work knowing their great-grandchildren will receive royalties. With regard to retroactive copyright extension, he viewed it foolish to apply the government's argument that income received from royalties allows artists to produce more work saying, "How will extension help today's Noah Webster create new works 50 years after his death?". He also attacked the idea that the fair use defense would efficently solve the First Amendment issue, as the defense could not help "those who wish to obtain from electronic databases material that is not there", e.g. teachers searching online for material to be used in the class (and finding that the ideal material has been deleted from the database).

In a separate dissenting opinion, Justice Stevens also challenged the virtue of an individual reward, analyzing it from the perspective of patent law. He argued that the focus on compensation results only in "frustrating the legitimate members of the public who want to make use of it (a completed invention) in a free market." Further, the compelling need to encourage creation is proportionally diminished once a work is already created. Yet while a formula pairing commercial viability to duration of protection may be said to produce more economically efficient results in respect of high technology inventions with shorter shelf-lives, the same perhaps cannot be said for certain forms of copyrighted works, for which the present value of expenditures relating to creation depend less on scientific equipment and research and development programs and more on unquantifiable creativity.

Lessig expressed surprise that no decision was authored by Chief Justice Rehnquist or by any of the other four justices who supported the Lopez or Morrison decisions. Lessig later expressed regret that he based his argument on precedent rather than attempting to demonstrate that the weakening of the public domain would cause harm to the economic health of the country.

Within a year of Eldred, it was serving as decisive precedent. Two cases, Luck's Music Library, Inc. v. Ashcroft and Peters and Golan v. Ashcroft and Peters, challenged the constitutionality of the Uruguay Round Agreements Act on the grounds that its "restoration amendment," which provided copyright restriction to foreign works that were in the public domain because foreign works were formerly not copyrightable, violated the First Amendment rights of those who would no longer be able to perform the works without observing copyright. The court cited Eldred and dismissed Luck's Music on the grounds that the First Amendment did not protect the ability to use others' words as much as it does protect one's ability to use their own. Golan v. Ashcroft and Peters's Uruguay Round portion survived a motion to dismiss even though its own challenge to the Sonny Bono Act did not. That case culminated in Golan v. Holder, which held that there was nothing in the Constitution preventing the government from taking works out of the public domain.

A 2007 case, Kahle v. Gonzales, worked from the Eldred v. Ashcroft opinion to argue that a change in copyright law as drastic as the change from opt-in to opt-out required a review in regard to freedom of speech. The plaintiffs, represented by Lawrence Lessig, argued that the limitations placed on speech and expression by copyright were drastically expanded and possibly too limiting. The Ninth Circuit determined that the argument was too similar to the one adjudicated in Eldred and dismissed the case.

Austin, Graeme W. (2003). "Copyright's Modest Ontology - Theory and Pragmatism in Eldred v. Ashcroft". Canadian Journal of Law and Jurisprudence. 16 (2): 163-178. doi:10.1017/S0841820900003672. S2CID 146365475. SSRN 528224.

Jones, Michael (2004). "Eldred v. Ashcroft: The Constitutionality of the Copyright Term Extension Act". Berkeley Tech. Law Journal. 19: 85.

Samuelson, Pamela (2003). "The Constitutional Law of Intellectual Property After Eldred v. Ashcroft". Journal of the Copyright Society. 50. SSRN 419540.

Ackman, Dan (January 17, 2003). "0.2% for the Mouse!". Wall Street Journal, January 17, 2003.

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Eldred v. Ashcroft Full case name Eric Eldred, et al. v. John Ashcroft, Attorney General Docket no. 01-618 Citations 537 U.S. 186 (more ) 123 S. Ct. 769, 154 L. Ed. 2d 683, 71 U.S.L.W. 4052 Decision Opinion Prior Eldred v. Reno, 74 F. Supp. 2d 1 ( D.D.C.

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"Whether technology advances and then law balances copyright, or whether the law stops the technology from advancing, in the name of current owners of copyright."  Lessig saw that copyright law was increasingly used to stifle technology and innovation. New technologies that arose with the internet reduced barriers to sharing creative works. The government response with the CTEA was to extend copyright protection, resulting in fewer works in the public domain, less material for creators and innovators to draw upon for new works.
( Quotation from: Lawrence Lessig, "The Creative Commons," Florida Law Review 55 no. 3 (2003): 12.)

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"Creative Commons is a nonprofit organization that helps overcome legal obstacles to the sharing of knowledge and creativity to address the world’s most pressing challenges."
The Creative Commons nonprofit organization provides CC licenses and public domain tools allowing creators "a free, simple, and standardized way to grant copyright permissions for creative and academic works; ensure proper attribution; and allow others to copy, distribute, and make use of those works." Creative Commons also:

works globally with cultural heritage institutions to support and advocate for open culture, and generally works to increase openly available knowledge everywhere;

runs the Open Education program to promote freely available educational materials;

promotes "open access to knowledge to accelerate progress towards solving the climate crisis and preserving global biodiversity."

provides varied training opportunities for people to become knowledgeable about CC licenses and to advocate for open knowledge and culture.

--"What We Do," Creative Commons, accessed February 2, 2023, https://creativecommons.org/about/.

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Responding to the loss in the Eldred vs Ashcroft case, the founders of Creative Commons, Lawrence Lessig, Eric Eldred and Hal Abelson produced the first licenses, enabling creators to signify to others who would re-use their work which rights they reserve and which rights they waive (while retaining copyright).
The standardized license language makes it easy for creators to bypass burdensome negotiations often involved in the re-use of works by others.

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As of 2019 there are six different types of CC licenses.
--"About CC Licenses" Creative Commons, accessed February 3, 2023, https://creativecommons.org/about/cclicenses/.

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Creative Commons licenses give everyone from individual creators to large institutions a standardized way to grant the public permission to use their creative work under copyright law. From the reuser’s perspective, the presence of a Creative Commons license on a copyrighted work answers the questio…

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Millions of Works with CC Licenses, 2023

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Millions of Works with CC Licenses, 2023

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In 2023 the Openverse site records over 600 million works with Creative Commons licenses.
--Openverse, accessed February 3, 2023, https://wordpress.org/openverse/?referrer=creativecommons.org.

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Search over 700 million free and openly licensed images, photos, audio, and other media types for reuse and remixing.

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Join the sharing community by applying Creative Commons licenses to your works.

Use and remix content with existing CC licenses.

Join the Creative Commons Global Network. Interact with other advocates, activists, scholars, artists across the globe working to strengthen the Commons.

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"Creative Commons: Why Now" by Laurie Sauer is licensed by Knox College under a CC BY-SA 4.0 International License.