The length of US copyrights has been growing ever longer. Supreme Court Justice Stephen Breyer‘s recent dissent in Golan v. Holder, 565 U.S. ___ (2012) (“Golan”), relies on the Constitution to reveal the folly of that lengthening. While some wonder why judges write dissenting opinions, those dissents sometimes grow into majority opinions later. Justice Breyer’s Golan dissent aids the fight against those who seek again to extend copyright terms into a second century – long past the time of any possible benefit to the human authors of works.

A copyright is a constitutionally authorized monopoly. It gives authors (which now includes everyone in the expressive arts: dancers, sculptors, artists, composers, musicians, photographers, etc.) an incentive to create works that the public can learn from and enjoy. While the Constitution requires that the monopoly be “for limited times,” those times have grown from fourteen years in 1790 to ninety-five years for works for hire today, and for works by individuals, the life of the individual author plus seventy years. Author J.D. Salinger published The Catcher in the Rye in 1951. He died in 2010. Under current copyright law, his estate will enjoy the copyright to this rock of American literature until 2080.

Golan upheld Congress’ 1994 vote to retroactively award copyright protection for foreign works that were never registered in the United States. The authors had registered their copyrights in their home countries, which did not have agreements with the US to respect those copyrights here. Justice Ruth Bader Ginsberg‘s majority opinion concluded that Congress’ grant of retroactive copyright protection “does not transgress constitutional limitations on Congress' authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.”

Justice Breyer’s dissent, joined by Justice Samuel Alito, focused on the source of Congress’ power over copyrights:

“In order ‘[t]o promote the Progress of Science’ (by which term the Founders meant ‘learning’ or ‘knowledge’), the Constitution's Copyright Clause grants Congress the power to "secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.’ Art. I, §8, cl. 8. This ‘exclusive Right’ allows its holder to charge a fee to those who wish to use a copyrighted work, and the ability to charge that fee encourages the production of new material.”

Justice Breyer stresses that “[t]he possibility of eliciting new production is, and always has been, an essential precondition for American copyright protection. . . . That philosophy understands copyright's grants of limited monopoly privileges to authors as private benefits that are conferred for a public reason—to elicit new creation.” In contrast, Congress’ retroactive award of copyright protection “does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works— works that have already been created and already are in the American public domain.”

Justice Breyer concluded that the Constitution’s Copyright Clause does not authorize the statute, arguing that

“This statute does not serve copyright's traditional public ends, namely the creation of monetary awards that ‘motivate the creative activity of authors,’ . . .’encourag[e] individual effort,’ . . . and thereby ‘serve the cause of promoting broad public availability of literature, music, and the other arts’ . . . . [Citations omitted.] The statute grants its ‘restored copyright[s]’ only to works already produced. It provides no monetary incentive to produce anything new. Unlike other American copyright statutes from the time of the Founders onwards, . . . it lacks any significant copyright-related quid pro quo.”

Breyer’s dissent finds that the majority opinion ignores the express purpose of the Constitution’s copyright monopoly: to give authors an incentive to create new works. Breyer equates the majority to the dreaded Stationers’ Company that squashed expression critical of the crown. The Stationers’ Company enjoyed a monopoly on printed works in England until 1710's Statute of Anne, when Parliament awarded the copyright monopoly to the authors, instead of publishers.

Justice Breyer finds that“[t]he possibility of eliciting new production is, and always has been, an essential precondition for American copyright protection.” Instead of the singular Continental focus on artists’ “moral rights,” British and American copyright law balances the interests of the artistic creators and consumers of those creations. A copyright monopoly should last only while it benefits society by providing incentives for creating new works. Its purpose is not to maximize the authors’ returns. Justice Breyer condemns the majority’s ignorance of “[t]his utilitarian understanding of the Copyright Clause [that] has long been reflected in the [Supreme] Court's case law.” Justice Breyer notes that

“In Twentieth Century Music Corp. v. Aiken, 422 U. S. 151 (1975), the Court says that underlying copyright is the understanding that ‘[c]reative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.’ Id., at 156 (emphasis added). And in Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984), the Court, speaking of both copyrights and patents, points out that the ‘monopoly privileges that Congress may authorize are . . . [not] primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors . . . by the provision of a special reward.’ Id., at 429 (emphasis added); see also, e.g., Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 6 (1966) (The ‘constitutional command. . . `[to] promote the Progress [of Science]' . . . is the standard expressed in the Constitution and it may not be ignored’); Fox Film Corp. v. Doyal , 286 U. S. 123, 127 (1932) (‘The sole interest of the United States . . . lie[s] in the general benefits derived by the public from the labors of authors’).”

Justice Breyer focuses on the constitutional justification for copyright, to “the power of copyright to elicit new production. Congress in particular cases may determine that copyright's ability to do so outweighs any concomitant high prices, administrative costs, and restrictions on dissemination.” When that incentive is removed from the equation, as Justice Breyer concludes it does for these (already created) foreign works, then Congress lacks the power to give copyright protection to them.

In 1998's Sonny Bono Copyright Extension Act, Congress prolonged copyright terms yet again. The same lobby that pushed that Act will return to Congress soon to extend those terms even further. Justice Breyer’s analysis of the constitutional rationale for copyright will demand the answer to this question: what will the public get when (not if) Congress tries to extend copyright terms into a second century? Does the additional revenue from extending copyrights a century or more from the date of creation cause more works to be created? It is hard to imagine an author saying that she won’t create a work unless the copyright lasts ninety, instead of seventy, years after her death. If the Constitution’s drafters wanted to give all the rights to authors, they would not have prefaced the right with an incentive clause, and they would have given the rights for all time – not for “limited times.”

Justice Breyer’s manifesto did not carry the day in Golan. However, he reinvigorates the constitutional link between incentive and copyrighted work - a rationale long ignored by those who seek to stretch copyright terms into a second century. Justice Breyer provides valuable ammunition for those who restore the balance between private and public interests.