Monday, March 7, 2011

Supreme Court to Decide Whether Foreign Works Can Be Taken Out of the Public Domain

Today the Supreme Court granted cert in Golan v. Holder.  The case involves a constitutional challenge to part of the Uruguay Round Agreements Act (URAA).  Section 514 of the URAA restored the copyright for certain foreign works that had fallen into the public domain.  The effect of the statute was to take out of the public domain many works that previously were not protected by copyright in the United States.  Examples include literature by C.S. Lewis, H.G. Wells, Gorky, Nabokov, and Solzhenitsyn; music by Prokofiev, Shostakovich, and  Stravinsky; films by Fellini and Hitchcock; and artwork by M.C. Escher and Picasso, including Picasso’s masterpiece "Guernica."
Petitioner Golan claimed that Section 514 violated both the Progress Clause of the Constitution (Article 1, §8, clause 8) and the First Amendment.  The Tenth Circuit Court of Appeals rejected Golan's challenge, but the Supreme Court has agreed to review the case.  I had worked on an amicus brief on behalf of the Internet Archive supporting the cert petition.   

Golan is significantly different than the earlier Supreme Court case of Eldred v. Ashcroft, 537 U.S. 186 (2003).  In Eldred, the Court upheld the constitutionality of the Copyright Term Extension Act of 1998 (CTEA), which extended the term for existing (non-expired) copyrights for 20 years. The CTEA did not remove anything from the public domain, since it only applied to works currently under copyright protection.  In contrast, Section 514 does remove works from the public domain. An earlier Tenth Circuit panel decision, Golan v. Gonzales, 501 F.3d 1179, 1193 (10th Cir. 2007), discussed this (citing Eldred, 537 U.S. at 221):

Section 514 has interfered with [plaintiff] Blackburn's right by making the cost of performance or creation of new derivative works based on Shostakovich's Symphony No. 5 prohibitive.  Moreover, as the example of Mr. Blackburn's composition suggests, plaintiffs’ First Amendment interests in public domain works are greater than the interests of the Eldred plaintiffs.  The Eldred plaintiffs did not—nor had they ever— possessed unfettered access to any of the works at issue there. As the Eldred Court observed, the most the Eldred plaintiffs could show was a weak interest in “making other people's speeches.” By contrast, the speech at issue here belonged to plaintiffs when it entered the public domain.  In reliance on their rights to these works, plaintiffs have already performed or planned future performances and used these publicly available works to create their own artistic productions.
The case will be briefed over the next several months and argued this fall.

The SCOTUSblog case page is here.  Patently-O's writeup is here.  UPDATE: Techdirt's discussion is here.

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