Shrinking the public domain – US Supreme Court affirms copyright protection for foreign works

Following our previous post involving copyright protection (Copyright or copy-wrong? US Supreme Court hears arguments in a case concerning the shrinking public domain) the United States Supreme Court has upheld the validity of a federal law that restores copyright protection to millions of foreign-produced books, movies and musical works.

This is the first time the US Supreme Court has held that works previously in the public domain may later

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be protected by copyright. This decision has significant consequences for artists, performers, archivists and musicians who now have limited access to works which were once freely available, as well as for large corporations such as Google which was a key supporter of the petitioners and is set to lose access to many of the 15 million books it had planned to make available as part of its online library.

The much anticipated decision means that literary, dramatic and musical works that were once in the public domain are now protected by copyright law. The case (Golan, et al. v. Holder, et al.) was on appeal from the United States Court of Appeals for the Tenth Circuit which held that Congress had the requisite power to remove foreign works from the public domain by restoring copyright protection.

A petition led by orchestra conductor Lawrence Golan challenged the 1994 law which was intended to bring the US into compliance with the Uruguay Round Agreements Act (“URAA”), an international treaty on intellectual property. The effect of incorporating the URAA into US domestic law was to reinstate copyright protection in foreign works which, due to non-compliance with US formalities or limited protection under international treaties, had entered the public domain. Affected works include J.R.R. Tolkien’s The Hobbit, hundreds of Picasso paintings, several Hitchcock films and the music of Stravinsky, Dmitri Shostakovich and other Russian composers.

The US Supreme Court held that neither the Copyright Clause in the US Constitution, nor any other law or precedent, would be a barrier to the extension of copyright protection to works which have already entered the public domain.

The Copyright Clause empowers Congress to enact statutes which grant authors and inventors exclusive rights to their writings and discoveries, provided that those rights exist for a limited time. The “limited time” restriction means that, in order to progress science and the useful arts, those exclusive rights must come to an end.

The petitioners had argued that the Copyright Clause creates an “impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain”, and that as a result, URAA was beyond the constitutional powers of Congress to enact. However, the Court disagreed, holding that the text of the Copyright Clause did not preclude the application of copyright protection to works already in the public domain. Further, the “limited time” restriction was not offended in this case since the extension of copyright to the works in question was not intended to be indefinite. As to whether the URAA met the constitutional requirement of “promoting the progress of science and the useful arts”, the Court found that the URAA may in fact encourage the dissemination of existing works by protecting the rights of the copyright owner. The Court noted that laws enacted for the purpose of either incentivising the creation of new works, or inducing the dissemination of existing works, would meet the objective of the Copyright Clause.

The Court also considered whether the URAA could be construed as offending the First Amendment. However, the court found that “the idea/expression dichotomy and the fair use defence… serve as built-in First Amendment accommodations” for copyright protection. The majority saw no reason why special First Amendment protection should attach to works which were once in the public domain.

Indeed, it appears to be quite a ‘black letter’ decision, in that the Supreme Court has eschewed a policy oriented ‘open source’ approach, instead focussing on a textual analysis of the applicable law. Only Justice Breyer (with whom Justice Alito agreed) in his dissent found that “by removing material from the public domain, the statute, in literal terms, “abridges” a pre-existing freedom to speak”. Considered against the background of the proposed Stop Online Piracy and Protect Intellectual Property Acts, this decision may represent a broader move in the US toward greater protection for copyright owners – even if such protection means curtailing freedom of speech just a little.

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