So Much for the Public Domain: Supreme Court Broadens Congressional Copyright Powers in Golan v. Holder

By Jason Weber *

copyrights symbolChina and Russia are once again at the top of a U.S. list ranking countries with the worst records of preventing copyright theft.  The list, published annually by the Office of the U.S. Trade Representative, attempts to encourage other countries to strengthen their copyright laws and crack down on piracy through what essentially amounts to public shaming.  If a similar list had been published 100 years ago, however, the United States would have been the one blushing.

Up until the 1890s, the U.S. refused to give any copyright protections to foreign authors.  In fact, the practice of publishing foreign works without paying royalties was so rampant that the U.S. was known as the “Barbary coast of literature” and “the buccaneers of books.”  While subsequent copyright laws granted limited protections to foreign authors, Congress refused to join a 100-year-old international treaty extending full copyright protection to authors in other countries until 1989.  By that time, however, millions of foreign works had already entered the public domain in the U.S.

To remedy this problem, Congress passed the Uruguay Round Agreements Act of 1994 (URAA).  Section 514 of the URAA restored copyright protections to foreign works that had already entered the public domain in the United States.  These works included famous books by C.S. Lewis, paintings by Picasso, films by Alfred Hitchcock, and musical works by Prokofiev and Stravinsky.  Opponents of the URAA, including musicians, orchestra conductors, teachers, and others who had relied on the free availability of these works, immediately challenged the law in Golan v. Holder.  Their primary argument was that Congress lacked any authority to remove works from the public domain, and in doing so, violated the First Amendment and core principles underlying U.S. copyright law.

GolanOn January 18, the Supreme Court rejected these contentions and upheld Section 514 of the URAA.  Writing for the majority, Justice Ginsburg held that “neither the Copyright Clause and Patent Clause, nor the First Amendment…makes the public domain…a territory that works may never exit.”  In support of this claim, the majority cited the fact that the original Copyright Act of 1790 also removed works from the public domain.  Further, the Court found that the public domain was not a category of constitutional significance warranting heightened review.  As such, the judiciary should defer to Congress on copyright and other intellectual property law issues.  Finally, the Court rejected petitioner’s First Amendment claims, saying the fair use doctrine adequately protected free speech rights.

Justices Breyer and Alito dissented, claiming the majority opinion went against the basic theory underlying copyright law.  To these justices, the purpose of copyright law was to promote the arts and sciences and encourage new production.  By removing old works that had already been part of the public domain for decades, the law “does not encourage anyone to produce a single new work.”  Breyer and Alito also agreed with the appellants’ First Amendment argument, finding that the statute “in literal terms, abridges a pre-existing freedom to speak” because it removes once freely disseminated and performed material from the public domain.

As some commentators have noted, the majority’s deferential approach in Golan followed a similar path to Eldred v. Ashcroft, the 2002 case upholding the Sonny Bono Copyright Term Extension Act that added 20 years to all existing copyrights.  These commentators warn that this approach could eventually lead to a perpetual copyright regime  and create uncertainty for libraries, teachers, and others who rely on the public domain to increase cultural awareness.  Another compared the decision to the Occupy movement, claiming this decision favors “the 1% (copyright owners) over the 99% (consumers and the public domain).”  Regardless of the long-term consequences of Golan for copyright law in the U.S., the immediate effect will most likely be felt closer to home.  As the lead plaintiff in the case argued, symphonies and other who rely on the public domain to provide low-cost cultural experiences will have to decide whether to increase ticket prices or cancel their performances due to the cost of royalties.

*  Jason Weber is a second-year law student at Wake Forest University School of Law and a staff member on the Journal of Business and Intellectual Property Law.  He holds a Bachelor of Arts in Political Science from Hope College and served with Teach for America prior to entering law school. After graduating in 2013, Mr. Weber intends to practice in the areas of education or community and economic development law.