With Congress locked in perpetual disagreement with the president and its poll-measured public popularity plummeting to historic lows, legislators surely could use a boost from the U.S. Supreme Court. But the justices’ 6-2 decision in Golan v. Holder, which both affirmed lawmakers’ treaty-making power and huge sway over the details of U.S. copyright law, including attempts to align the American system with international practices, also has served to aggravate First Amendment advocates, scholars and educators and many involved in music (such as devotees of composer Sergei Prokiev, right) and film. Here’s why:
The fracas dates to 1994, when Congress enacted a law to fulfill an international convention that gave works enjoying copyright protection abroad the same full term of protection available to U. S. works.
The Supreme Court has just affirmed the constitutionality of that law, notably how it supports Section 514 of the Uruguay Round Agreements Act. It grants through treaty the copyright protection to preexisting international works, protected in their country of origin, but lacking that status in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound recordings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). In deciding Golan, the high court upheld Section 514 which restored copyright protection to works that had entered the public domain, usually as a result of technical violations that don’t exist today.
Justices rejected arguments based on the First Amendment and the Constitution’s copyright clause, saying that the public domain was not “a category of constitutional significance” and that copyright protections might be expanded even if they did not create incentives for new works to be created. The law applied mainly to works first published abroad from 1923 to 1989 that had earlier not been eligible for copyright protection under American law. These include films by Alfred Hitchcock, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Igor Stravinsky — notably favored by named plaintiff Lawrence Golan, a conductor and Denver University prof — and paintings by Pablo Picasso.
The law was challenged by orchestra conductors, educators and scholars and film archivists who said they had relied for years on the free availability of such works. A key opponent, as noted by the Wall Street Journal, was Google, the internet giant that is seeking to scan millions of works into its system in the Google Books Library System. Opponents — who have won endorsement for their views from some leading editorial voices — had argued that a work that has entered the public domain must remain there. The government, supported by large Hollywood companies and trade associations, argued there was a national interest to being part of the international copyright system.
In the majority opinion, written by Justice Ruth Bader Ginsburg, the court explained:
“[Section] 514 falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to [international copyright measures] ‘promotes the diffusion of knowledge.’ A well-functioning international copyright system would likely encourage the dissemination of existing and future works.”
Ginsberg also advised that there were still protections in place to make use of many of these foreign works. She says, for example, that parties can continue to exploit a restored work until the owners gives notice of an intent to inforce, and that the treaty leaves undisturbed any fair uses of copyrighted works.
The number of works affected is estimated somewhere in the millions.
Joining Ginsberg’s opinion were Chief Justice John Roberts and Justices Antonin Scalia, Kennedy, Clarence Thomas and Sonia Sotomayor. Justice Elena Kagan recused herself, and Justices Stephen Breyer and Samuel Alito formed the minority.