Works in the public domain are not off limits, according to the U.S. Supreme Court in yesterday’s Golan v. Holder (No. 10-545) decision.  In this 6-2 opinion, the Court held that the U.S. Constitution gives Congress the right to enter into international treaties even if implementing those treaties means that copyright protection would be restored in certain works of foreign authors that previously had fallen into the public domain in the U.S. (meaning not protected by copyright, and therefore, free for anyone to use).  This issue arose out of a 1994 law passed by Congress to bring the U.S. in compliance with international copyright treaties.  Under that law, Congress extended copyright protection to works that were protected in their home country, but which had fallen out of protection in the U.S. for one reason or another.

Orchestra conductors, teachers, film archivists, and other groups who relied upon freely using public domain works of foreign composers, filmmakers, and the like challenged the 1994 law on two grounds: 1) that Congress exceeded its authority when it passed the 1994 law; and 2) that the 1994 law violated the First Amendment guarantee of freedom of expression.  Both arguments failed.  According to the Court, the language about securing limited protection for works (found in the Copyright Clause of the U.S. Constitution, Article 1, Section 8) does not exclude copyright protection being applied to works in the public domain as long as the restoration of protection extends only to the length of time that the work would have otherwise enjoyed.  In other words, the term of protection cannot be extended beyond that which the law already allows for U.S. works.  Importantly, the Court also said that Congress’s objective to advance a well-functioning international copyright system (one where the same protections apply across borders) encourages the dissemination of existing and future works, and therefore, it is consistent with the Copyright Clause.

As for the First Amendment argument, the Court held that the First Amendment does not include an automatic right to use works of authorship, and besides, there are already two legal principles that facilitate expression.  The first is the principle that only the creative fixed expression of an idea is protected, not the idea itself.  Under this principle, people are legally entitled to express commonly used ideas in their own creative way (as long as the resulting expression is not substantially similar to the works of others).  The second legal principle that promotes expression is the Fair Use defense, which allows for certain uses of protected works for criticism, comment, news reporting, teaching, scholarship, and research.

With the Court’s Golan decision, parties interested in using the works covered by the 1994 law (which in some estimates account for millions of works), will need to pay royalties similar to those paid to American authors.  Expect a huge public outcry similar to that seen after the Court’s Eldred v. Ashcroft decision, 537 U.S. 186 (which allowed Congress to extend the term of copyright protection), by those who believe that the scales of justice tip too far in favor of entrenched rights holders rather than the public at large.

Posted by Adam W. Sikich