The Constitutional Law of Intellectual Property after Eldred V. Ashcroft

Abstract

Scholarly discourse about the constitutional law of intellectual property will not die out after the Supreme Court's decision in Eldred v. Ashcroft, but only enter a new phase. Many significant constitutional questions remain open after Eldred, and Eldred opened up some new possibilities for constitutional challenges.

Although Dastar v. Fox mainly presents a question of statutory interpretation about whether publishers of a derivative work of a public domain work must credit the original author of the work or face liability for reverse passing off, the case was argued in part on constitutional grounds. Those engaged in the debate about whether the public domain is a constitutionally significant interest will construe the Court's decision in constitutional terms. The result in Dastar may also have implications for constitutional challenges to legislation granting copyright in works that were for many years in the public domain due to failure to comply with U.S. formalities for copyright protection. The Court has repeatedly insisted that Congress cannot create intellectual property rights in public domain works in constitutionally inspired rulings. Eldred may have decided that Congress could extend the terms of existing copyrights, but it did not deal with the resurrection of dead copyrights, as the new cases do.

Also much disputed is the constitutionality of database protection legislation proposed in Congress akin to the new intellectual property regime created in the EU that confers on publishers an exclusive right to control extraction and reuse of data from databases. The Court in Feist insisted that the U.S. Constitution required a creativity-based standard for copyright (and presumably for copyright-like) protection of databases. While the Supreme Court did not accept the extension of the principles of Feist for which Eldred argued, it did not abjure Feist. Hence, EU-style database protection may be unconstitutional. Eldred also suggests that higher First Amendment scrutiny may be required when assessing changes to the traditional contours of intellectual property law, such as EU-style database protection and the DMCA anti-circumvention rules, calling into question the Second Circuit's decision in Universal City Studios v. Corley. Even if such laws can surmount facial challenges to their constitutionality, the article gives examples of "as applied" challenges likely to be successful.

Keywords: copyright, intellectual property, database protection, public domain, anti-circumvention, fair use, First Amendment