Two fundamental issues arising from the language of the Copyright- Patent Clause of the Constitution are (1) the limits, if any, the stated purpose of copyright in the Constitution- “To promote the Progress of Science” places on the statutes Congress may enact, and (2) when is the Constitution’s “limited Times” restriction on the duration of copyright protection exceeded. As copyright protection prevents some duplications, transmissions and performances of copyrighted works, and deriving new works from existing copyrighted works, the constitutional intersection of the Copyright Clause and the First Amendment likewise cannot be avoided. In the past decade, the Supreme Court has decided two cases that arose at the confluence of these issues: Eldred v. Ashcroft in 2003 upholding a twenty-year increase in the term of existing copyrights, and Golan v. Holder in 2012 upholding copyright protection for many foreign works previously in the public domain in the United States.

This article examines the opinions and dissents in these cases and then discusses some problems, concerns, and alternatives that these decisions leave in their wake. The increased copyright duration and the removal of many foreign works from the public domain were sold to Congress on the grounds they would enhance the United States’ balance of trade and in- crease income from abroad for United States copyright owners although more cosmetic reasons were articulated. It is clear the Court chose broader grounds than were needed to uphold the statutes in question. In upholding these enactments, the Court stressed its great deference to Congress. The level of deference given to Congress, however, quite arguably seems overly deferential and incorporates a very passive approach to judicial scrutiny of copyright legislation. This article concludes that we may be seeing a basic change in the focus of copyright in both Congress and the judiciary from enhancing and increasing knowledge to benefit the public to a model that favors the copyright owners and their monopolies.