On Monday, the US Supreme Court agreed to hear the Golan v. Holder copyright case. In a post for Duke’s Scholarly Communications website, Kevin Smith — who also wrote about the original case in 2009 — provided a nice background summary:
Basically the problem is that a law passed to reconcile U.S. copyright law with the international treaties that we agreed to in 1988 and after had the effect of removing some works from the public domain. This had virtually never happened before; until the Uruguay Round Agreements Act (URAA) of 1994, things that were in the public domain stayed there, and users could safely depend on their availability for use and reuse. For a subset of materials, however, the URAA changed the rules pretty dramatically and, according to the petitioners, in a way that conflicts with the basic protection of free speech found in the US Constitution.
According to the official case file, the court agreed to hear the case on two issues: “(1) Does the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, prohibit Congress from taking works out of the public domain? (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?”
In an email interview, Dana Newman, a transactional and intellectual property attorney, described the case and the nuts and bolts of the decision with which the Supreme Court is faced:
This is an important case because it tests Congress’ ability to extend the boundaries of copyright law. The Constitution gives Congress the power to secure exclusive rights for authors and inventors “for limited times.” Copyright terms have been lengthened under the Copyright Act to now protect most works for 95 years.
The Golan case challenges Congress’ ability to take works that are in the public domain in the U.S. (but still under copyright abroad), and restore their copyright status to comply with international treaties. The law at issue acts as another extension of copyright protection, by “recopyrighting” a large number of foreign works that had been in the public domain in the U.S. for decades.
In a Wired post about the case, David Kravets quoted from a blog posted by Anthony Falzone, a Stanford law lecturer, executive director of the Fair Use Project, and a lawyer for the plaintiff in the case:
The point of copyright protection is to encourage people to create things that will ultimately belong to the public. While the scope and duration of copyright protection has changed over time, one aspect of the copyright system has remained consistent: once a work is placed in the public domain, it belongs to the public, and remains the property of the public — free for anyone to use for any purpose.
In our interview, Newman pointed out that a decision in either direction will have far-reaching implications:
If the law’s upheld, it will affect the conductors, performers, educators, libraries, archivists and others who rely on the use and distribution of those foreign works, and create uncertainty as to the status of works currently presumed to be in the public domain. On the other hand, if the law is struck down as unconstitutional, there is the issue of our copyright laws being out of alignment with foreign copyright laws, and the risk that U.S. copyrighted works won’t be recognized in European countries if we don’t respect their copyrights here.
What might ultimately be the larger issue is the increasing globalization factor of intellectual property and the legal world as a whole being slow to adjust. Newman noted:
The case is also interesting in that it highlights the fact that despite living in the digital age of increasing globalization, there is no international copyright law, and rights in one country don’t necessarily translate to the same rights in another country. The recent copyright infringement case involving Lucasfilm and the Stormtrooper helmets was another example — the company couldn’t enforce its U.S. judgment in the UK.