Perpetual Copyright - United States

United States

In the United States, perpetual copyright is prohibited by its Constitution, which provides that copyright is "for limited times". However, it neither specifies how long that term can be, nor does it impose any restriction on the number of times the term may be extended. Indeed, since the enactment of the Copyright Act of 1790, copyright term has been successively extended by Congress on four occasions, retroactively extending the terms of any copyrights still in force. Following the enactment of the Copyright Term Extension Act in 1998, a coalition of plaintiffs led by publisher Eric Eldred argued that this act and a previous extension of the copyright term in the 1970s had created a de facto "perpetual copyright on the installment plan". This argument was rejected by the US Supreme Court in Eldred v. Ashcroft, which held that there was no limit to how many times the term of copyright may be extended by Congress, so long as it is still a limited term at the time of each extension.

State and common law have granted perpetual copyright in certain special cases not covered by federal copyright law. Sound recordings made before 1972 are under the jurisdiction of state copyright laws which provide perpetual protection. Prior to January 1, 1978, when the Copyright Act of 1976 came into effect, unpublished works were protected by common law, which recognized perpetual copyright in these works for as long as they remained unpublished. The 1976 Copyright Act exerted federal jurisdiction over unpublished works for the first time and all copyrights in these works were assigned a fixed term even if they remain unpublished.