Last Wednesday the Supreme Court heard oral arguments concerning Golan v. Holder, potentially one of the most influential copyright cases in United States history. This case centers around whether Congress has the power to restore copyright protection to works whose protection has expired and are in the public domain.
In 1994, Congress enacted the Uruguay Round Agreements Act (URAA) to implement the Uruguay Round General Agreement on Tariffs and Trade (GATT) that included the “copyright restoration” provision. This provision restores the copyright protections of many foreign works, nearly 50,000 in number that were previously in the public domain. Among those works removed from the public domain were Sergei Prokofiev’s “Peter and the Wolf,” the British films of Alfred Hitchcock, and stories by H.G. Wells.
The named petitioner in this case is Lawrence Golan, a professor and conductor at the University of Denver. Petitioner Golan has two main arguments: (1) Congress is prohibited from taking works out of the public domain by the Progress Clause of the United States Constitution, Article I, § 8, cl. 8. ; and (2) the “copyright restoration” provision, § 514, of the URAA violates the First Amendment of the United States Constitution.
The URAA adversely affects many interests. Artists hoping to create derivative works based on one of these foreign pieces are out of luck. The costs of using a copyrighted work are prohibitive to many individuals wishing to give their own artistic twist to these masterpieces. Furthermore, works that have ALREADY been produced based on one of these works have been saddled with unanticipated fees, destroying their financial viability. Film-making is another industry that will be adversely affected if the public domain is subject to restriction and uncertainty by granting Congress this power of restoration.
So, what does this have to do with technology or telecommunications??
While the URAA is concerned only with certain foreign works, the Supreme Court is addressing a broader question–whether works with expired copyrights can have these rights restored by congressional legislation. This broader question has the potential to shake up digital content sharing with significant impact on the public.
If Congress has the power to restore copyrights to works, that could lead to uncertainty as to what will happen to the public domain. Digital technologies enable new ways to appropriate works in the public domain to create, share and use them. However, movies and music productions that were once thought to be in the public domain and appropriate for sharing on the internet for use by the public will be at jeopardy. Users will be reluctant to share works that were once thought to have passed into the public domain, for fear that Congress might restore copyright protections and allow the copyright holders to seek redress. Discouraging provision of works that are in the public domain online for public consumption will greatly diminish the access to such works. Reluctance to utilize these works could have adverse consequences on technological innovation and creative development, unjustifiably capping the potential for artistic creation and sharing that these tools inspire.
Furthermore, digital content sharers will have to constantly monitor which works Congress has chosen to restore copyright protection to for fear of leaving such works online. This could place a considerable financial burden on publishers of digital content and might discourage them from publishing any material from the public domain whatsoever.
Individual innovation and enjoyment of these works will thus be adversely affected by reluctance to digitally share works that are in the public domain. If the Supreme Court rules in favor of the government in this case, then the public domain will cease to exist as we have come to know it. Innovation will be stymied and digital sharing of these works will cease to exist.
What are your thoughts?