With all of the wrangling over SOPA and PIPA this week, a significant development in copyright law has been almost overlooked. On Wednesday, January 18th 2012, the Supreme Court issued its ruling in the case of Golan v. Holder. The central issue in the case is whether Congress could take works out of the public domain and re-copyright them. In a 6-2 decision, the Court ruled in Congress’s favor.
The situation in the present case arose out of an attempt to harmonize United States law with existing international copyright laws. Each nation has its own copyright laws that define what works can be copyrighted and how long the copyright term is. Until the late 1880’s, very few countries gave foreign authors copyright protection. In an attempt to remedy this disparate treatment, the Berne Agreement was created in 1886. It is the principal agreement covering international copyright recognition. Over 160 countries are signatories to the agreement requiring them to treat foreign authors as well as they treat their own authors for copyright purposes.
The United States did not join the Berne Agreement until 1989. By this time, many works that would be covered under the Berne Agreement had been in the public domain for many years. In order to comply with the terms of the treaty, the United States had to extend copyright protection to these works, removing them from the public domain.
The plaintiffs in this case consisted of musicians, orchestras, and other artists who make their living performing public domain works. Once these works are accorded copyright protections, artists will have to pay a licensing fee to perform them (one example of a work that will be removed from the public domain is the classic symphony Peter and the Wolf). The plaintiffs argued that removing works from the public domain violates the Patent and Copyright Clause and the First Amendment of the Constitution.
“Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.”
The court was sympathetic to the plaintiff’s position, but ultimately rejected their arguments. Justice Ginsburg, writing for the majority, opined “Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors.” She went on to say that this judgment was “well within the ken of the political branches.”
Justice Breyer, joined by Justice Alito dissented from the opinion. They argued that the goal of copyright law is to promote the creation of new works and that removing works from the public domain provides no incentive to create. Justice Kagan did not take part in the decision.
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