Fair Use and Statutory Reform in the Wake of Eldred

Abstract

The Supreme Court in Eldred v. Ashcroft' upheld the constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA).2 The Court did this not because it believed it wise to tack 20 years onto all existing copyrights, as well as to copyrights for new works, but because it did not believe that Congress had exceeded its constitutional authority in doing so. The Court did not deny that extension would create problems; one of these is our concern in this Article. It is the problem of obtaining licenses to reproduce old works of limited commercial value. The retroactive feature of the CTEA is keeping many of those works from falling into the public domain, where they could be copied and disseminated without the need to locate and negotiate with the owner of a copyright. We suggest that the problem can be solved either by continued evolution of the judicially shaped doctrine of fair use or by a modest amendment to the Copyright Act. We discuss both possible solutions, but begin with a review of the problem.