Whose Public Domain Is It, Anyway?
On Monday, the Supreme Court granted certiorari in Golan v. Holder, an interesting case that revolves around foreign-created works within the public domain in the United States that have since been removed and given copyright-protected status. When stated like that, this action seems completely unfair and contrary to the essence of copyright law. Unfortunately, the events leading up to this unique case are quite complicated and can be traced back a number of years. No matter how it ends, there doesn’t seem to be an entirely satisfying resolution in sight.
First we set the time circuits for 1886. A handful of European countries as well as Tunisia come together for what becomes known as the Berne Convention. The main result is an international copyright system designed for equal treatment between signatory countries, regardless of an author’s national origin. Also included in the treaty is a clause that requires newly participating countries to grant retroactive protection for existing works if protection in countries of origin had not expired. This is the root of our current case.
Fast forward to 1988. The United States finally joins the Berne Convention (164 member countries as of 2011). At the time, there are numerous foreign works sitting in the public domain in the US (which had never been copyrighted here), but still protected in their countries of origin. Although the US should, under the convention, grant retroactive copyright-protected status to these works, it declines to follow that section of the treaty. However in 1994, with the Uruguay Round Agreements Act, Congress finally brings the country into compliance by recognizing these foreign copyrights.
Unfortunately, this has a few negative consequences for a number of American parties. For instance, music by Igor Stravinsky has become a commonly cited example of work that was removed from the US public domain. Thus, an orchestra that could freely perform his music in the past may now have to pay hundreds or thousands of dollars for each performance to continue doing so. The protections also extend to derivative works. That orchestra may have recorded a concert featuring Stravinsky music years ago, but now could be required to pay royalties for the right to sell copies.
There is certainly a sense of unfairness inherent in the revocation of public domain status. One of the two issues being examined by the Supreme Court revolves precisely around that issue. Does the Patents and Copyrights Clause of the Constitution even give Congress the power to restore copyright protection to materials that have entered the public domain? The answer isn’t all that clear. We can’t forget that the URAA is intended to bring the US into treaty compliance, and that treaties, while not above the Constitution, are “supreme Law of the Land” within the Supremacy Clause.
The second question for the Supreme Court is whether the URAA violates the First Amendment. A Colorado District Court found unconstitutional the suppression of “the right of reliance parties to use works they exploited while the works were in the public domain.” In a reversing opinion, the 10th Circuit countered by stating that, because “the government has not burdened substantially more speech than necessary to further an important interest,” the courts must show deference to Congress’s decision.
The international nature of this issue also matters. As unpleasant as the removal of public domain status may be, protecting valid copyright holders is a legitimate interest. The purpose of copyright law is to encourage and reward creativity, and Congress passed the URAA for just that purpose. American law may not exist for the benefit of Russian composers, but ignoring the Berne rules jeopardizes the enforceability of American copyrights, as other countries will be less inclined to unilaterally protect our intellectual property. Indeed, it would seem somewhat hypocritical to simultaneously accuse China of ignoring rampant international copyright infringement while refusing to honor our own copyright commitments.
I can see compelling arguments on both sides of this case and I don’t really know what the right answer is. In the end, I guess I feel like the US has to honor the treaties it signs, especially if it expects any sort of reciprocity. That said, I’m sure going to miss Sonia the Duck.