Tuesday, 24 January 2012
The Public Domain in the United States just got smaller.
In this Kat’s opinion, SCOTUS (The Supreme Court of the United States) picked quite an interesting time to release its opinion in Golan v. Holder, (10-545, January 18, 2012), which upholds Congress's ability to recapture works previously in the public domain and put them back under copyright protection. Just as Congress was running away from the roar of the tech community with its tail and its SOPA and PIPA bills between its legs, SCOTUS gave Congress a great big boost in confidence in its own power to legislate copyright matters.
Many scholars more studied and intelligent than this Kat have summarized the case much better than this Kat could. You can find a good explanation here, but for sake of reference, this Kat will provide a brief one as well:
In 1989 the U.S. acceded to the Berne Convention to give protection to foreign works to the same extent protection was granted to U.S. residents. Initially, however, Congress chose not to enact Article 18 to extend protection to works that had fallen in the public domain in the U.S. for one of three reasons: “The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound recordings fixed before 1972; or the author had not complied with certain U.S. statutory formalities,” including proper copyright notices and timely renewal. (Slip Op., 1). Certain Berne member countries were unhappy with this decision, according to the majority, but no mechanism was in place to resolve the dispute or to force compliance until the U.S. acceded to TRIPS in 1994. As a result of its obligations under TRIPS, Congress re-captured foreign works in the categories above from the public domain and gave them copyright protection to the end of the term to which they otherwise would have been entitled, under Section 514 of the Uruguay Rounds Agreement Act. (For a counterview on whether the recapture of all such works was in fact an obligation under TRIPS, and a strong opinion on the case in general, see Tyler Ochoa’s blog post here.)
The result was that an enormous body of work which had been previously available to orchestras and symphonies to use and arrange for free was suddenly no longer available for free (Congress did instill a grace period that made the change not so “sudden”). Before, “Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace.” (Slip Op. 29)
The majority relied heavily on legislative history to countervail any argument that recapturing works in the public domain was a highly unusual move for Congress to take. (The dissent uses much of the same history to come to a different conclusion, of course).
The petitioners made a number of arguments that are much better described elsewhere, but some points in the case are worth mentioning again.
One of the arguments made by the petitioners was that the law violated their First Amendment right of free speech by taking away the right to perform these works. The majority held that the two “traditional contours” of copyright in the U.S. that protect First Amendment rights - fair use and the idea/expression dichotomy - are all the First Amendment protections that exist. Moreover, and perhaps unnecessarily overstated, the public domain is not, according to the majority, “a category of constitutional significance.” (Slip Op. 21, n. 26). Petitioners had argued that impingement of their “vested rights” in the works in the public domain deserved higher scrutiny - the majority turned the argument on its head, stating that the rights only vest “at the outset of copyright, in an author or rightholder.” (Slip Op. 28). Works do not “vest” anywhere at the end of the copyright term; instead they simply fall into the netherworld of public domain which exists, it seems, only in the absence of a statute.
Moreover, the majority seems to suggest that Congress may, if it sees fit, enact any number of statutes that may restrict (or for that matter expand) the public domain; the Court reiterates its statement in the Copyright Term Extension Act case of Eldred v. Ashcroft, 536 U.S. 186 (2003), that the Copyright Clause of the U.S. Constitution “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” Id., at 222. We may find some comfort in the the Court’s consideration of what action it might take if Congress were to engage in such “legislative misbehavior” as “perpetual copyright,” but the deference to Congress’s authority under the Copyright Clause (and the general current belief, in light of SOPA and PIPA, that Congress may in fact be moving towards perpetual copyright) has caused some measure of alarm.
This Kat was, as you might have read, somewhat dismayed by the pitchfork raising that overtook Twitter last week in the fight against SOPA. But it can not be denied that the voice of the Users was louder than the Creators in that fight, and it had a big and dramatic effect. This might have been good practice. With the Supreme Court bowing so low to Congress’s authority, those who find themselves on the wrong end of the next copyright legislation to come out of Congress may well consider themselves the last and best line of defense against a bad or runaway law, and a Twitter rally may be the only way to stop it.
Tomorrow, we'll look at the dissent. This Kat personally thinks the dissent's arguments mostly don't stand up, but it certainly sheds some light on the real life consequences of the majority's holding.