Document Type

Article

Publication Date

January 2007

Abstract

This contribution to a symposium on Copyright and The Constitution considers whether the Treaty Clause provides an alternative source of copyright lawmaking authority with respect to enactments impermissible under the Copyright Clause. Existing literature suggests three paradigmatic positions on the question. First, some scholars view the Treaty Clause as conferring a power whose content is wholly subservient to the limits of the Copyright Clause. A second group of scholars sees the Treaty Clause as offering an alternative lawmaking authority, but one that is substantially limited by the internal limits of the Treaty Clause. Finally, some commentators and litigants have read the Treaty Clause as an expansive autonomous lawmaking power that is largely unconstrained by internal limits and wholly unconstrained by the external limits found in the Copyright Clause. This paper adopts none of the three paradigmatic positions. I argue that those seeking to make the Treaty Clause subservient to the Copyright Clause both overstate the constitutional weight of the Copyright Clause and underestimate the autonomous role of the Treaty Clause in the American governmental structure. By the same token, however, the argument that the Treaty Clause should operate wholly unaffected by the limits in the Copyright Clause rests on a vision of the Treaty Clause that fails to acknowledge the multitude of ways through which international law and policy influences and informs domestic American copyright law. Support for autonomous lawmaking authority under the Treaty Clause must be tempered by the contemporary political reality that international processes may simply be an inappropriate end-run around the limits of Copyright Clause authority rather than occasional operation of an independent and different political process. And because of the entanglement between domestic and international lawmaking that now characterizes the copyright lawmaking process, reliance upon the traditional internal limits of the Treaty Clause will prove largely unavailing. The only way to make the restrictions on the Treaty Clause real is to develop a jurisprudence of judicial policing that reflects both the policy values that support the autonomy of the Treaty Clause and the realities of the contemporary copyright lawmaking process. Thus, I suggest that courts faced with reviewing copyright laws reliant upon the Treaty Clause for their constitutional legitimacy examine a matrix of at least three variables: (1) the strength of the international obligation with which domestic actors seek to comply; (2) the political process by which international norms are adopted and expressed in U.S. law; and (3) the limits in the Copyright Clause that the challenged law allegedly violates.

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