Based on these two cases, as well as the Constitution's mandate that copyright be used to promote the useful arts and sciences it seems at least plausible that a copyright statute which is unquestionably detrimental to the promotion of the useful arts and sciences is per se unconstitutional. A retroactive extension of copyright cannot create incentives for artistic expression. The works have already been created and in most cases the authors are already dead. Additionally, if the rights to such a work were sold to a publisher such a windfall cannot possibly reward the author or his heirs who have alread bargained away their claims decades ago. Conversely, this 1998 copyright term extension clearly harms academics, libraries, artists, and students who are unable to cheaply access works that would otherwise be in the public domain.
Current artists are also unable to utilize copyrighted material to produce derivative works.
As such, the Copyright Term Extension Act leads to an unambiguous harm to academic research and artistic expression without providing for a corresponding increase in incentives to create artistic expression in the first place. Such an unjustified alteration of the delicate balance mandated by Article I, Section 8 of the U.S. Constitution is unjustified. As more works are taken out of the public domain the ability to create derivative works inspired by the classics is dramatically reduced. Such a loss of artistic expression is not offset by additional creative enterprise and, as such, cannot possibly be consistent with copyright's goal of promoting the useful arts and sciences. Last modified April 11, 1999.