Thursday, January 26, 2012

Petitioners “Berned” by US Supreme Court in Golan v. Holder Decision

The US Supreme Court handed down its decision in Golan v. Holder last week. The case, brought by “orchestra conductors, musicians, publishers and others” who previously enjoyed free access to certain works in the public domain, challenged the constitutionality of Section 514 of the Uruguay Round Agreements Act, which was passed by Congress and signed into law by President Clinton in 1994. The Act provides for the restoration of copyrights in foreign works that previously were not afforded protection under US copyright law because (i) the US did not protect works from the country of origin at the time of publication; (ii) the US did not protect sound recordings fixed before 1972; or (iii) the author had not complied with certain US copyright statutory formalities in place at the time (e.g., notice requirements, copyright registration, etc.). Important to note is that the Act was largely meant to bring US copyright law in line with requirements mandated by the Berne Convention. Recall that Article 18 of Berne requires that countries who are signatories, of which the US became one in 1989, protect the works of other member states unless the works’ copyright term has expired either in the country where protection is claimed or the country of origin.

Petitioners challenged 514 on two grounds, namely that its enactment (i) exceeded Congress’s authority under the Copyright Clause and (ii) that the restoration of author’s copyrights effectively violated the First Amendment’s freedom of expression by restricting speech that was previously permitted. In a 6-2 decision, authored by Justice Ginsburg, the Court rejected both of the Petitioner’s arguments. First, with respect to the Copyright Clause argument, Justice Ginsburg writes, “We see no barrier in the text of the Copyright Clause, historical practice, or our precedents.” Petitioners claimed that by restoring the copyright to works that had previously entered the public domain Congress had gone beyond the “limited time” imposed by the plain language of the Copyright Clause. Justice Ginsburg writes, “Our decision in Eldred is largely dispositive of petitioner’s limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended by 20 years, the terms of existing copyrights’…’Ruling that Congress acted within constitutional bounds, we declined to infer from the text of the Copyright Clause ‘the command that a time prescription once set, becomes forever ‘fixed’ or ‘inalterable” [citing Eldred v. Ashcroft, 537 U.S. 186 (2003)]]. The court goes on to list historical examples of where the Court had previously upheld a restoration of rights by Congress including in the patent area. The Court also rejected Petitioner’s argument that taking public domain works and placing them back into protected status contravened the promotion of the “diffusion of knowledge.” “A well-functioning international copyright system would likely encourage the dissemination of existing and future knowledge,” countered Justice Ginsburg. Petitioners also argued that Congress’s act of restoring rights to foreign authors violated the First Amendment by distinguishing the facts of the case from Eldred and noting that the Petitioners in the current case already held “vested” rights in works that previously entered the public domain. After rejecting the “vested” rights argument (“Rights typically vest at the outset of copyright protection, in an author or rightholder”), the Court added, “Section 514’…’does not impose a blanket prohibition on public access. Petitioners protest that fair use and the idea/expression dichotomy “are plainly inadequate to protect the speech and expression rights that section 514 took from petitioners, or …the public” – that is, “the unrestricted right to perform, copy, teach and distribute the entire work for any reason’…’Playing a few bars of a Shostakovich symphony is no substitute for performing the entire work.” In response to this line of argument, the Court writes, “But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work.”

Justice Breyer wrote the dissent and was joined by Justice Alito.

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