The Term That Wouldn't End

The Constitutional Frame

Article I, Section 8, Clause 8 of the United States Constitution — the “Patent and Copyright Clause” — authorizes Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”¹ The clause’s language is, in operational terms, the foundational constitutional framework for American intellectual-property law. The principal substantive features of the framework are two: the purpose clause (“to promote the Progress of Science and useful Arts”) and the constraint clause (“for limited Times”). The framework treats the exclusive rights granted to authors and inventors not as natural property rights equivalent to land or chattel, but as time-limited incentive mechanisms with a specific public purpose. The framework’s structural claim is that the social cost of granting the exclusive right is justified by the social benefit of the additional creation the incentive produces, and that the right is therefore appropriately limited in time and scope to the level necessary to produce the incentive effect.

The constitutional framework has been the subject of substantial Supreme Court interpretation across the post-1790 period; the contemporary jurisprudence has substantially preserved the framework’s structural features while permitting Congress substantial latitude in defining what constitutes “limited Times” and what specific exclusive rights the framework can grant.² The decision in Eldred v. Ashcroft (2003), which upheld the Copyright Term Extension Act of 1998 against the constitutional challenge that the extension violated the “limited Times” constraint, is the contemporary high-water mark of the deferential interpretation: the Court held, 7-2, that Congress’s judgment about what constituted “limited Times” was substantially insulated from judicial review so long as the term was not literally unlimited.³ The decision’s deferential framework has produced the operational situation in which Congress can extend copyright and patent terms through ordinary legislation without substantial constitutional constraint, so long as the extensions do not approach formal perpetuity.

The deferential framework’s empirical consequence has been the trajectory of post-1976 American intellectual-property legislation, which has consistently extended terms, expanded rights, and strengthened enforcement mechanisms across both copyright and patent law. The trajectory has been, with limited exceptions, the unidirectional extension of intellectual-property rights at the cost of the public domain that the constitutional framework had structurally assumed would receive the works as the “limited Times” expired. The next sections describe the trajectory in the principal sub-areas.

The Copyright Term

The Copyright Act of 1790, the first American copyright statute, provided fourteen-year copyright terms with renewal for one additional fourteen-year period — a maximum of twenty-eight years.⁴ The framework was substantially the framework the British Statute of Anne of 1710 had established and that the constitutional drafters had been familiar with. The term length corresponded approximately to the typical commercial life of a creative work in the late eighteenth and early nineteenth centuries; after twenty-eight years, the work entered the public domain and became available for free reuse, adaptation, and distribution.

The copyright term has been extended by Congress repeatedly across the subsequent two centuries. The Copyright Act of 1831 extended the initial term from fourteen to twenty-eight years (with the renewal period unchanged), producing a maximum of forty-two years. The Copyright Act of 1909 extended the renewal period from fourteen to twenty-eight years, producing a maximum of fifty-six years. The Copyright Act of 1976, the most substantial reform of American copyright law, established the contemporary framework: the term for individual works became life of the author plus fifty years, with the term for corporate “works for hire” set at seventy-five years from publication.⁵ The Sonny Bono Copyright Term Extension Act of 1998, the most consequential single piece of contemporary copyright legislation and the principal legislation the next paragraph describes, extended both terms by an additional twenty years, producing the contemporary framework of life-of-the-author plus seventy years for individual works and ninety-five years for corporate works for hire.⁶

The 1998 Sonny Bono Copyright Term Extension Act, frequently referred to as the “Mickey Mouse Protection Act” for the Walt Disney Company’s central role in lobbying for the legislation, was passed in the immediate period before the original Mickey Mouse animation Steamboat Willie (1928) would have entered the public domain under the prior framework.⁷ The Act’s twenty-year extension postponed Steamboat Willie’s public-domain entry to January 1, 2024 — and, by structural extension, postponed the public-domain entry of essentially all American copyrighted works produced between 1923 and 1977 by approximately twenty years. The Act was passed by voice vote in the Senate (with no recorded vote, suggesting the substantial-bipartisan-support framework that contested controversial legislation would not have allowed) and by 248-148 in the House, with both major-party coalitions providing substantial support.

The structural feature of the Sonny Bono Act that the contemporary intellectual-property literature has been most consistent in identifying as anomalous is the Act’s effect on the works-not-being-incentivized population. Copyright term extension can, in principle, produce two structural effects: the prospective effect of incentivizing additional creation (which the constitutional framework treats as the principal justification for the rights), and the retrospective effect of extending the rights for works that have already been created and that the prior shorter term had not, at the time of creation, prevented from being created. The 1998 Act’s prospective effect was, on the substantial empirical literature, near-zero: an author considering whether to create a work in 1998 was not materially affected by the choice between a copyright term of life-plus-fifty (which the prior framework had provided) and life-plus-seventy (which the Act provided), because the additional twenty years operated approximately seventy years after the author’s death and had no practical bearing on the contemporary creation decision.⁸ The Act’s retrospective effect was substantial: the works that had been created under the prior framework were now subject to the extended term, which substantially benefited the corporate copyright holders of the most-valuable older works (Disney, the major movie studios, the major music publishers) at the cost of the public-domain entry the prior framework had structurally provided for. The Act’s principal beneficiaries were not the authors whose creation it had purportedly incentivized; the principal beneficiaries were the corporate copyright holders whose existing portfolios had their commercial life extended by twenty years.

The orphan works problem is the structural consequence of the post-Sonny-Bono framework that the contemporary copyright literature has identified as the most operationally consequential.⁹ An “orphan work,” in copyright terminology, is a work whose copyright is in force but whose copyright holder cannot be located or identified. Under the post-1976 framework’s automatic-copyright provisions (which substituted the registration-and-renewal framework of the prior law with automatic copyright on creation), and under the post-1998 extended-term framework, the orphan-works population has grown substantially. The works in the orphan-works category cannot be lawfully reused — for digitization, for adaptation, for educational purposes, for any purpose beyond the narrow fair-use exception — because the copyright holder, even though unidentifiable, retains the legal right to exclude the use. The structural consequence is that vast portions of twentieth-century American culture — books, films, photographs, sound recordings — are, in operational terms, locked away from contemporary reuse not because any specific copyright holder is asserting the rights but because the structural framework prevents the reuse without the rights-holder’s affirmative consent that the rights-holder cannot be located to provide.

The Patent Pathologies

The contemporary American patent system operates against several structural pathologies that the patent-law literature has documented at length and that the platform’s intellectual-property position substantially addresses.¹⁰

The first pathology is patent shelving — the practice of acquiring patents on competing innovation in order to prevent the innovation from being commercialized. The mechanism operates particularly in the pharmaceutical industry, where a firm with an established product may acquire patents on competing therapeutic approaches and decline to develop the competing approaches into commercial products, thereby protecting the established product’s market position against the competition the alternative approaches would have provided.¹¹ The mechanism is structurally distinct from the patent system’s intended function (which is to incentivize creation through exclusive commercial rights); the shelving mechanism uses the patent rights to suppress creation rather than to incentivize it. The empirical record of patent shelving in pharmaceuticals is substantial; the legal framework that would address it (a working requirement that conditioned the patent’s continued validity on the patent’s actual development or licensing) has not been advanced through the legislative process.

The second pathology is evergreening — the extension of patent life on existing pharmaceutical products through trivial modifications that extend the protected period without providing substantial therapeutic improvement.¹² The mechanism operates through the patent system’s accommodation of incremental improvements: a manufacturer that obtains a patent on a new formulation of an existing drug, on a new dosage form, on a new combination with another drug, on a new indication, can extend the effective patent protection on the underlying product by years or decades beyond the original patent’s expiration. The mechanism is the principal contemporary explanation for the persistent high cost of branded pharmaceuticals in the American market: drugs that, on the original-patent timeline, should have entered the generic-competition phase remain protected through the evergreening mechanism, with the corresponding price effects on the American consumer and on the American healthcare system the previous essay in this series described.¹³

The third pathology is pay-for-delay — settlement agreements in which brand-name pharmaceutical manufacturers pay generic manufacturers to delay entering the market with generic versions of branded drugs.¹⁴ The mechanism operates within the framework of pharmaceutical patent litigation: a generic manufacturer files an application to enter the market with a generic version of a branded drug; the brand-name manufacturer sues for patent infringement; the parties settle the litigation with the brand-name manufacturer paying the generic manufacturer to drop the application and delay market entry. The empirical record on pay-for-delay is substantial; the Federal Trade Commission has, across the post-2000 period, identified the mechanism as one of the principal anti-competitive practices in the American pharmaceutical market, with cumulative consumer cost estimated at multiple billions of dollars annually.¹⁵ The mechanism has been the subject of repeated FTC litigation; the Supreme Court’s decision in FTC v. Actavis (2013) substantially constrained the most egregious form of the practice but did not eliminate it.¹⁶

The fourth pathology is the patent troll — the entity that acquires patents not to commercialize the underlying technology but to extract licensing fees from genuine commercial operators through litigation threat.¹⁷ The mechanism operates particularly in the software and method-patent space, where the patent system’s accommodation of broad and frequently dubious patents has produced a substantial population of patents whose principal commercial value is the extraction of licensing fees through litigation against firms that may or may not actually be infringing the underlying patents. The American Invents Act of 2011 established the inter partes review process that has substantially reduced the patent-troll problem at the margin; the mechanism continues to operate at substantial scale.¹⁸

The fifth pathology is the broader category of strategic patent acquisition for purposes other than commercialization or productive innovation. The agricultural-genetics industry’s use of patents on plant varieties and seed-sterilization technologies; the technology industry’s defensive patent portfolios that exist principally to deter litigation by other technology firms; the broader use of patent rights as commercial-strategic instruments rather than as incentives for creation — all are operational features of the contemporary American patent system that the platform’s intellectual-property position addresses through the working-requirement and the broader-reform components.

The Two Parties’ Two Failures

The Democratic-coalition position on intellectual-property reform across the post-1990 period has been, in operational terms, substantially aligned with the rights-holder coalition on the principal issues. The 1998 Sonny Bono Copyright Term Extension Act was passed with substantial Democratic-coalition support; the subsequent Democratic-coalition position on copyright term reform has not produced legislative attempts to roll back the extension. The Democratic-coalition’s position on pharmaceutical patent reform has been more mixed: substantial Democratic-coalition support for the Inflation Reduction Act of 2022 included the partial Medicare drug-price-negotiation framework that addresses the broader pharmaceutical-pricing question that the patent pathologies contribute to;¹⁹ the broader pharmaceutical-patent reforms (working requirements, evergreening restrictions, pay-for-delay banning, march-in rights expansion) have been advanced by specific Democratic-coalition legislators without becoming the operational priority of the broader coalition.

The Republican-coalition position has been structurally different and has been substantially aligned with the rights-holder coalition on essentially all dimensions. The Republican-coalition’s general framework on intellectual property treats the rights as property rights equivalent to land or chattel, opposes the categorical reforms the constitutional framework would support, and has substantially defended the existing framework against the reform proposals that have been advanced. The Republican-coalition has, on the patent-troll subcategory specifically, supported some reform (the Republican Senator John Cornyn was a principal supporter of the America Invents Act of 2011); on the broader categorical reforms, the Republican-coalition has been substantially opposed.

The convergent failure of the two parties has been the absence of any serious legislative framework for the structural reforms — copyright term rollback, working requirements on patents, comprehensive evergreening restrictions, pay-for-delay banning, march-in rights exercise — that the empirical record validates and that the constitutional framework would support. The reforms have been advanced by specific advocates and by specific legislators; the reforms have not become the operational priority of either major-party coalition because both coalitions are substantially funded by the rights-holder coalition that the reforms would constrain.

What’s at Stake

The Intelligent Party’s policy framework on intellectual property, articulated in the platform’s intellectual-property position, is the fourteen-component proposal that addresses the structural features the previous sections diagnosed.²⁰ The components include the working requirement on patents, the comprehensive pharmaceutical reforms (pay-for-delay banning, evergreening restrictions, orphan-drug-designation tightening, march-in rights exercise), the copyright term rollback (50-year maximum for corporate works, life-of-author for individual works), the orphan-works mechanism, the software-and-method-patent reforms (12-year term, higher inventiveness bar), the patent-troll reform (actual practice as standing requirement, loser-pays litigation), the gene-sequence patent restrictions, and the federal investment in the open-source commons.

The framework’s structural distinctiveness is the explicit invocation of the constitutional framework — the “promote progress” purpose and the “limited times” constraint — as the operational standard against which the reforms are evaluated. The framework treats intellectual property as the time-limited incentive mechanism the constitutional framework establishes, rather than as the permanent property right the contemporary practice has substantially treated it as.

The political coalition required to enact the fourteen components does not currently exist. The conditions under which it might assemble are the conditions the broader fourth-settlement framework requires.

The realism the previous essays have called for, applied to intellectual property, is the realism that the structural reform is achievable on the constitutional framework the original framers established and on the empirical record the contemporary literature has documented; that the principal obstacles to its enactment are the rights-holder lobbying coalition that the campaign-finance reform of The Donor Class would constrain.²¹ The conditions under which the obstacles break are the conditions the broader settlement requires.

The term that wouldn’t end is the term that the contemporary intellectual-property regime has, across fifty years of extension and accumulation, structurally prevented from ending. The structural reform — the restoration of the constitutional framework’s “limited Times” and “promote progress” components to operational adequacy — is the assembly the broader fourth-settlement framework requires.

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Notes