This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.
The Supreme Court yesterday heard oral argument in Golan v. Holder, the closely-watched copyright case which will resolve whether millions of foreign works will fall out of the public domain.
As we previously reported, Petitioners — orchestra conductors, film distributors and others who "depend upon the Public Domain for their work" — allege that Section 514 of a treaty codified as the Uruguay Round Agreements Act (17 U.S.C. §§ 104A, 109(a)) violates the Copyright Clause and the First Amendment because it provides copyright protection to certain foreign works that were previously in the public domain.
Anthony Falzone, attorney for Petitioners, argued first that Section 514 violated the Copyright Clause's stricture that copyright law must "promote the Progress of Science and useful Arts," because it essentially stripped from the public domain millions of works that authors, composers and other artists previously relied on to create new works. As Falzone put it, "[a] statute that . . . does nothing but take old works out of the public domain . . . cannot stimulate the creation of anything." He also argued that Section 514 violated the First Amendment, because Congress "[took] away public speech rights, and turn[ed] them into somebody else's private property."
Justice Ginsburg seemed the most skeptical of Falzone's position, and questioned him extensively on the basis for his argument that the Constitution protects the public domain. As she pointed out, the Copyright Act originally did not protect foreign works, and Section 514 did nothing more than to treat those foreign works the same as U.S. works, to "bring us into compliance with the worldwide system . . . ." Because Congress was required to set a term of copyright, and Section 514 did not treat foreign authors any better than U.S. authors, she posited, there was no violation. As she put it, "all that Congress is doing is giving Shostakovich works the same limited [protection] as Aaron Copeland [works]."
Arguing for the Respondents, Solicitor General Donald Verrilli was asked about the massive effect Section 514 would have on the public domain. Chief Justice Roberts expressed hypothetical concern for perhaps a more widely-recognized artist than Petitioner Golan, guitar legend Jimi Hendrix – "[h]e has a distinctive rendition of the national anthem, and . . . assuming the national anthem is suddenly entitled to copyright protection . . . he can't do that [anymore], right?"
Verrilli responded that because copyright "provide[s] exclusive rights in expression," such a curtailing of rights would survive scrutiny. He also pointed out that Section 514 provided protections for derivative works, and that Hendrix might be able to avail himself of the constitutionally-protected fair use defense. Verrilli distinguished Congress's power to provide copyright protection to foreign works from its lack of power to encroach on other areas "at the core of the traditional contours of copyright," such as fair use, and the idea/expression dichotomy, without violating the First Amendment.
With the oral argument concluded, it is still difficult to predict where the Court will come out on this issue. Some Justices seemed genuinely troubled by the effect Section 514 will have on the public domain. Justice Breyer pointed to the statement from Barbara Ringer, the former Copyright Registrar, that there were "millions of instances where people would like to go back and would like to put music, literature, film etc. in a form that people can use it today and there is no way to do it without their becoming scofflaws, or without their having millions of dollars to hire infinite numbers of trackers and lawyers." Others, like Justice Ginsburg, seemed convinced that Congress was not overstepping its bounds by merely providing to foreign authors the same rights it had already accorded to those in the U.S.
We will continue to follow and report on this case.
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