Wednesday, October 5, 2011
The Evolution of Copyright: Golan v. Holder, or How Congress Took Your Share of the Public Domain and Gave It (Back) to Dead Foreigners
In most cases, the absence of copyright protection for foreign works was because the U.S. did not have copyright treaties with the countries in which original copyright protection for the work was obtained. The problem was that, because we treated these foreign works as belonging to the Public Domain in the U.S., other countries treated U.S.-originated works as Public Domain in their own countries. As such, U.S. authors had no copyright protection in a small but significant portion of the world.
In 1994, Congress changed all that. The Uruguay Round Agreements Act granted copyright protection to those foreign works that were previously considered Public Domain on the theory that such would cause foreign countries to reciprocate and grant copyright protection to U.S. authors. And so, with one swift move, Congress took those foreign works previously owned by you and me and gave them back to their original (mostly dead) copyright owners. This too caused a problem: hundreds, if not thousands, of people had relied on these works as being in the Public Domain when they reproduced them, performed them, or used them to create what are known as derivative works.
Who would stand up to the might of Congress and the foreign interests? Who would represent the nameless masses from whom the works had been stolen? Why, those who stood to lose money, of course—the very parties that had come to rely on the Public Domain status of foreign works in performing or producing the same for money. The reliance parties, as they are referred to, challenged Congress’ action on two grounds: (1) that the Progress Clause of the U.S. Constitution precludes Congress from taking works out of the Public Domain; and (2) that the new restriction on use of works formerly in the Public Domain was an impermissible restriction on Free Speech.
The case was argued before the U.S. Supreme Court this very morning. From the transcript of the oral argument, it is obvious that certain Justices (Ginsberg and Sotomayor) favor the government’s position, while other Justices (Scalia and Breyer) favor the position of the Petitioners. Where the rest fall is anyone’s guess. The decision should issue later this term. Stay tuned to TLM for the exciting conclusion.
Now for a confession. After all the dramatization above, I think the government has the better argument here. The Progress Clause of the Constitution contains no language that would prevent Congress from taking works out of the Public Domain (indeed, it did so upon the creation of the first Copyright Act). And it seems evident to me that Congress carefully weighed the public benefits of joining the international copyright community in determining to pick our collective pockets of those works formerly in the Public Domain. I’m upset that they robbed me (and without compensation—though that’s a topic for another day), but I understand why and how they did so. So there.
Did anyone other than the legal community even realize that this fight was going on? Does anyone have an opinion here? Are you all asleep? I thought so.