Alternatives to the Copyright Power

The Relationship of the Copyright Clause to the Commerce Clause and the Treaty Power

Moderated by Tim Wu.

Tom Nachbar, Virginia: Jefferson made today’s argument: intellectual products are not like tangible property because they are nonrivalrous. Some have suggested that this is a reason why Congress can’t use non-IP powers to regulate; it can only regulate through the IP clause. Nachbar disagrees. Every Article I power has limits, but that doesn’t mean those limits apply to each clause – we have to take the constitutional whole into account. His research fails to reveal norms that would justify applying copyright’s limits across all the other clauses. Rent-seeking, for example, is a practice with a long and noble history in US law, so you can’t say copyright’s limits implement a generally applicable anti-rent-seeking norm.

IP rights aren’t so special from the modern point of view, either. Can nonrivalry serve as a justification for limiting Congress’s power to grant, say, perpetual rights or rights in facts using the commerce clause or the treaty power? Rivalry is a continuum – my pen is much more rivalrous than my yard, given the way I use them. Even with a public park, there is rivalry between lovers of parks and lovers of strip malls. The rivalry is not for possession but for control. IP assumes the existence of rivalry over the income stream generated by a work.

Is rivalry encoded in the patent and copyright clause? It’s hard to see in any of the words of the clause. The durational limit could be equally applied to tangible property – we do that with property taxes, which make sure that a piece of property is being used in a way that’s economically productive. The subject matter doesn’t seem particularly tied to rivalry – compare expression, ideas, and facts; rivalry doesn’t seem to be a factor distinguishing between them. Even if we assume that “promoting progress” is a limit, that again has little to do with rivalry.

Markets are not subject to rivalry. Buyers & sellers are consumers of markets, but additions of buyers and sellers to markets only increase the value of the market. We do favor public control over private control of markets – the government specifies how markets are run, as for example with the Sherman Act. But there’s no constitutional requirement of or limits on such regulation of nonrivalrous goods. Congress can shut down markets pretty much at will; nonrivalry doesn’t play a role in constitutional constraints generally.

What lessons? His hope is to further erode arguments that IP is somehow constitutionally privileged. Rational basis is the way to go (First Amendment claims aside).

My comment: I’m not sure why the copyright clause only controls other clauses if it expresses a generalizable value. The requirement that the President be at least 35 when elected expresses no generalizable value, yet I find it difficult to imagine that Congress could circumvent it with a treaty.

Dotan Oliar, Virginia: Courts should develop a concept of covered subject matter, and not let Congress circumvent it through reference to other clauses. So, with the antibootlegging statutes, the arguments are that both the writing/fixation and limited times requirements have been violated. The government argued that the commerce clause nonetheless justified the statute.

The scope of the commerce clause used to be much narrower; the federal trademark laws were originally (and unsuccessfully) defended under the IP clause because they went beyond the then-current understanding of the commerce power. Now, though, the commerce clause power has expanded so that all IP regulation could be seen as regulating interstate commerce. Still, the Court hasn’t abandoned its commitment to the existence of some limits on congressional power.

The closest Supreme Court precedent is the one striking down a nonuniform bankruptcy law that Congress attempted to enact under the commerce clause. This is equivalent to an attempt to enact perpetual copyright for all works, but it’s not clear how the precedent applies in cases of less obvious conflict. Given that bankruptcy and IP are both economic regulations, they will both always be regulations of interstate commerce under current definitions – and yet the Court does not allow limitations on one power to be avoided by use of the commerce power. What’s driving is the canon that the specific controls the general. Dastar is a related case – a conflict between copyright and trademark, the latter of which is justified by the commerce power. Scalia says that the specific rules of copyright trump the regulation of attribution in general commerce.

Conclusion: the bootlegging cases are borderline – what is the essence of this regulation? If it’s essentially copyright, then the law is unconstitutional. If it’s essentially a regulation of commerce, it’s fine. One implication: we should only worry about the antibootlegging law if we think that copyright law affirmatively bars this kind of law.

Graeme Dinwoodie, Chicago-Kent: Dinwoodie wants to look at the treaty clause, which has been raised in defense of the antibootlegging statute. Almost every single provision of the Copyright Act that’s been challenged of late has an international dimension. Arguably, there’s broader support for viewing the treaty clause as offering autonomous legal authority, that is, Missouri v. Holland’s endorsement of using treaties to do what couldn’t be done under the commerce power. Possible views:

(1) Subservience: the treaty power is limited by the copyright clause. If the clause’s limits mean anything, they can’t just be circumvented by a convenient treaty. The embarrassing case is Holland. Are the limits on the copyright clause fundamental to the structure of American law? If so, the treaty power can’t justify abrogating the copyright clause any more than it could justify abrogating Sixth Amendment rights, as in Reed v. Covert. Dinwoodie thinks this overstates the case, since copyright’s limits aren’t fundamental to the structure of American governance. Treaty-making involves different institutions and constraints than domestic lawmaking. Anyway, if one clause controls the other, which is on top? Arguably the treaty power is more specific than the copyright clause as to matters within its scope, and should thus control. And, if other countries do copyright differently, securing American copyright values might require more leeway in treatymaking.

(2) Expansiveness: the treaty power is unconstrained by anything but explicit limits like the First Amendment. This gives too much latitude to the treaty power. Proponents haven’t explored the line between affirmative prohibitions (which can’t be abrogated in their theory) and failures of power (which can be). For example, many theorists think “limited times” means “and not forever,” so why isn’t that an affirmative prohibition? And many effects of international law on domestic copyright are implemented not through the treaty power but through ordinary domestic lawmaking. TRIPs is not a treaty, for example. Using the treaty power may be a simple end run around the copyright clause rather than an independent exercise of foreign negotiating powers.

(3) Limited expansiveness: the treaty power is unconstrained by other powers but subject to internal limits, such as subject matter.

We need to acknowledge the integration of the domestic and international lawmaking processes. A provision of copyright law that exceeds the copyright clause isn’t constitutionally immune from challenge because it’s done under a treaty, but the US can enter the international environment to achieve copyright goals even with nontraditional means. Consider: (1) the important role of the treaty clause in giving domestic effect to US international obligations, (2) the strength of the international obligation – is the US directly committed to it, or is it a permissive move to improve the US negotiating position, and (3) the extent to which the treaty process incorporated real political checks.

Some limits in the copyright clause are arguably more effective than others. “Limited times” is hard to assess, as is “promoting progress,” but limited times has some justiciable content, as the antibootlegging statute shows.

Wu: Imagine that Congress wanted to create perpetual copyright for Peter Pan, using the commerce power and also pursuant to a treaty with England. What should the courts do?

Nachbar: There’s no particularly helpful limit from the copyright clause – this is an easy question, since it’s a regulation of foreign commerce. If there’s a rational basis, no problem. He agrees with Dinwoodie that there is a middle ground – the treaty power gives extra but not infinite power. Perpetual copyright for Peter Pan would be within that middle ground.

Oliar: Nope, unconstitutional. In the bankruptcy case, Congress pretended it was passing a commerce regulation, but the Court identified it as really a bankruptcy law. Same here. As for the treaty power, it would be a pretextual enactment and also invalid. Wu calls this a “jurisprudence of end runs.”

Dinwoodie: Actually, England can’t make treaties, only the UK can. But it’s a good hypo. The hardest limit in the copyright clause is “limited times,” because it’s got to mean something. It doesn’t require a great deal of second-guessing to identify a perpetual copyright as violating “limited times.” So it would fail under the commerce clause. The treaty clause is harder. Assume that it’s a fully committed international obligation – the strongest possible – and a treaty with full 2/3 Senate consent, it’s really hard and he doesn’t want to allow perpetual copyright to survive, but he squirms. Given the strength of the limited times obligations, he wouldn’t honor something like an executive agreement or a bicameral treaty-lite. Pretext should also matter – if this is really an end-run around copyright, that’s a reason to strike down the law.

Nachbar: Limited times is the hardest limit for him, too. There’s no particular connection to a theory of why times should be limited. It creates a public domain of old and largely valueless works, but without a coherent theory of what that does for us. There’s no generally applicable value that comes out of it.

Jane Ginsburg: What if Congress rewrites the bootlegging act with a term of years, but no fixation requirement?

Oliar: This is why students don’t like hypotheticals. The older understanding of “writings” is that it deals with originality, not with fixation – so maybe that’s the answer. The TRIPs agreements, the reason for the antibootlegging statute, require a minimum term of years, not perpetuity. If the competing value is the need to conform to international standards, Congress could easily have done so.

Ginsburg: Then you think that the rule that the specific controls the general does not mandate a result here.

Oliar: Yes, he doesn’t yet have an answer about whether the writings requirement is necessarily limiting. The necessary & proper clause might also play in here, so that anti-bootlegging is a way to protect the actual writings of authors.