Supreme Court to hear case on re-copyrighting public domain works

The United States Supreme Court announced on Monday that it has accepted a case that will decide whether artistic works, including films and music, that are considered part of the public domain can be placed back under copyright protection where those other than the creator must pay to use them.

The case originated a decade ago, when University of Denver music professor Lawrence Golan and others filed a lawsuit against the US government in reaction to a 1994 amendment to the Copyright Act, known as the Uruguay Round Agreements Act (URAA), which put certain works by foreign artists back under copyright protection to comply with international treaties. Golan and his supporters maintain that the actions of the URAA make it too expensive for groups like small symphonies, which Golan makes a living from conducting, to perform classic works such as composer Sergei Prokofiev’s Peter and the Wolf.

“It really affected a lot of people in a lot of communities in a negative way from a cultural standpoint,” Golan said.

Other works affected include early Alfred Hitchcock films, some works by J.R.R. Tolkien, and many other classic films, musical compositions, and writings.

According to the Petition For A Writ Of Certiorari issued in the case, the Supreme Court will attempt to answer these two questions:

1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?
2. Does Section 514 (URAA) violate the First Amendment of the United States Constitution?

“This statute [URAA] throws into question one of the most basic premises of intellectual property: once a work of authorship is placed in the Public Domain, it belongs to the public, and remains the property of the public,” says Anthony Falzone, the executive director of the Stanford University Fair Use Project, the group which is representing Golan’s side of the case. “That principle was respected for more than 200 years, because it represents a critical limit on the intellectual property ‘monopoly’ the framers authorized. What Congress did here represents a huge departure from those basic principles with substantial constitutional ramifications.”

So far, the case has been heard two times each in both federal District Court and the 10th Circuit Court of Appeals. During the last round in June, 10th Circuit Chief Judge Mary Beck Briscoe decided that complying with the URAA and allowing re-copyrighting is necessary to also protect American works in foreign countries.

“Around the globe American works were being exploited without the copyright owners’ consent and without providing compensation,” Briscoe wrote.

According to Falzone, the Supreme Court will hear the case in the fall after starting its next term, which begins in October.

This is definitely going to be a huge case to watch this fall. While I understand and respect that artists and creators feel the need for protection of their work, I do also think it would be a shame if the next generations are unable to experience classic productions and musical pieces like I enjoyed as a child. It will not be easy to come to an agreement on the issue.