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F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku
F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku
Faculty Publications
This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, …
Congressional Authority Over Intellectual Property Policy After Eldred V. Ashcroft: Deference, Empty Limitations, And Risks To The Public Domain, David E. Shipley
Congressional Authority Over Intellectual Property Policy After Eldred V. Ashcroft: Deference, Empty Limitations, And Risks To The Public Domain, David E. Shipley
Scholarly Works
The United States Supreme Court upheld the Copyright Term Extension Act of 1998 (CTEA) in Eldred v. Ashcroft. The Court ruled that Congress had not exceeded its authority under the Copyright Clause by extending the copyright term twenty years and applying this extension retroactively to existing copyrighted works that otherwise would have entered the public domain at the end of their current, nonextended terms. The majority found a rational basis for CTEA and showed great deference to the authority of Congress to set policy that, in its judgment, effectuates the aims of the Copyright Clause. Although this deference to …