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supreme court guts public domain in u.s.

January 19, 2012

Public Domain Works Can Be Copyrighted Anew, Supreme Court Rules (nytimes.com) By ADAM LIPTAK Published: January 18, 2012

The Supreme Court on Wednesday upheld a federal law that restored copyright protection to works that had entered the public domain. By a 6-to-2 vote, the 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 case, Golan v. Holder, No. 10-545, considered a 1994 law enacted to carry out an international convention. 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, including films by Alfred Hitchcock, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso. The precise number of affected works is unknown but “probably number in the millions,” Marybeth Peters, the United States register of copyrights, said in 1996. The law was challenged by orchestra conductors, teachers and film archivists who said they had relied for years on the free availability of such works.

Justice Ruth Bader Ginsburg, writing for the majority, said the law had merely put “foreign works on an equal footing with their U.S. counterparts. [...] Assuming a foreign and domestic author died the same day, their works will enter the public domain simultaneously,” she wrote.

The issue, as noted, is that there are works which are foreign and became public domain in the US, but were still copyrighted in other parts of the world. Congress passed legislation to re-copyright some items to bring the US into full compliance with the Berne Convention.

One of the arguments by the plaintiffs was that this would effectively allow Congress to legislate effectively perpetual copyright status. The Court majority politely disagreed. This is because they've already agreed with Congress that it has the right to legislate effectively perpetual copyright, in Eldred v. Ashcroft.

In a post at Ars Technica, the article mentions that one of the plaintiff lawyers says that the decision "suggests Congress is not required to pay particularly close attention to the interests of the public when it passes copyright laws." To which, of course, the proper response is, "Well, DUH! When was the last time YOU noticed Congress paying particularly close attention to the interests of the public regarding ... well, anything?"

It will, no doubt, be presented in various places as Big Media Buys Off Congress And Court Agrees. (Though, to be fair, Big Media apparently bought off Europe first.) Or, The House of Mouse Wins A Fight They Weren't Even Fighting, or something like that. Even if the issue was bringing the U.S. into compliance with its treaty obligations -- which is the basis for the Court's decision -- it's hard not to notice that a number of the entities who will benefit from this decision are also the same ones who benefited from the Court's last major copyright decision. And that one WAS a case where Big Media Bought Congress.

If nothing else, the decision did manage to produce a striking combination of dissenters. Except in unanimous decisions -- which the Court rarely has about anything important these days -- you would rarely find Breyer and Alito in agreement. But in this case, in Breyer's dissent, in which he was joined by Alito, they both agreed that the copyright authority in the constitution was meant to be much more limited than this decision implied, and that this decision "abridges a pre-existing freedom to speak".

It's going to be interesting to see what happens. There are many items in various digital repositories, like Google Books and Hathi Trust -- items considered "orphan works", not purely because the copyright term had expired, but because the potential holders of copyright were no longer in business or could not be located -- that suddenly now have copyright protection previously lacking. What happens with those items? It also gives further ammuntion to the lawsuits against those projects.

For various academic and public interests, it's going to be a brave new world, figuring out what now is and is not covered, and what they're allowed to do.

Posted by iain at January 19, 2012 12:49 PM







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