Restoring Copyright to Public Domain Works – Adam Liptak

WASHINGTON

Supreme Court arguments often concern not just the narrow issue in the case but also the implications of a ruling. You sometimes catch the justices squinting, trying to see over the legal horizon.

Nine years ago, for instance, the court heard arguments in a case about whether Congress was free to add 20 years of copyright protection for works that had not yet entered the public domain.

Several justices asked about a different and even tougher question: Was Congress also free to restore copyright protection to works that had entered the public domain and become public property?

“If Congress tomorrow wants to give a copyright to a publisher solely for the purpose of publishing and disseminating Ben Jonson, Shakespeare, it can do it?” Justice Stephen G. Breyer asked a lawyer for the government.

“It may,” said the lawyer, Theodore B. Olson, who was United States solicitor general at the time. But he did not sound too sure.

A little later, Justice David H. Souter pressed Mr. Olson on the same point and elicited the concession that restoring a copyright presented a much harder case.

“There is a bright line there” for “something that has already gone into the public domain,” Mr. Olson said.

Justice Souter seemed satisfied. “If you don’t throw out a line there,” he said, “then Ben Jonson certainly gets recopyrighted.”

The court ended up ruling, by a 7-to-2 vote in 2003 in Eldred v. Ashcroft, that extensions for works still under copyright are allowed.

This month, the court agreed to hear a case on the question Justices Breyer and Souter anticipated, one that will test whether there is indeed a constitutional line Congress may not cross when it comes to the public domain.

The new case asks whether Congress acted constitutionally in 1994 by restoring copyrights in foreign works that had belonged to the public, including films by Alfred Hitchcock and Federico Fellini, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso, including “Guernica.”

“The works that qualify for copyright restoration probably number in the millions,” Marybeth Peters, the United States register of copyrights, said in 1996.

The plaintiffs in the new case, Golan v. Holder, are orchestra conductors, teachers and film archivists who say they had relied for years on the free availability of works in the public domain that they had performed, adapted and distributed.

The 1994 law, they told the justices, “did something unprecedented in the history of American intellectual property law and constitutionally profound.”

Lawrence Golan, the lead plaintiff, teaches conducting at the University of Denver and is the music director and conductor of the Yakima Symphony Orchestra in Washington State. He said the 1994 law made it very difficult for smaller orchestras to play some seminal 20th-century works that had once been a standard part of their repertories.

“Once you own a Beethoven symphony, you own it till it falls apart,” he said. “That used to be the case with Stravinsky, Shostakovich and Prokofiev. Now an orchestra that wants to play, say, Shostakovich’s Fifth has to rent it for $800 for one performance.”

He said he had no quarrel with providing financial incentives to people who create art. “Obviously, current composers need to be encouraged to create their works, and they should be getting royalties,” Mr. Golan said.

But he said withdrawing works from the public domain did great harm to the cultural life of small communities for no good reason.

That analysis, Mr. Golan’s lawyers say, is consistent with the constitutional balance between property and speech. The Constitution authorizes Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

In other words, said Anthony T. Falzone of the Stanford Law School Center for Internet and Society, which represents the plaintiffs, the Constitution meant to create incentives, not monopolies. “The whole point wasn’t to protect stuff,” he said. “It was to encourage people to make stuff, and everybody’s lost sight of that.”

The government counters that nothing in the 1994 law did damage to the constitutional structure or to free speech rights.

The government adds that the 1994 law applies to foreign works “previously ineligible for protection or whose authors were unfamiliar with the technicalities of United States law.” Every work brought back into copyright protection, the government says, “expires on the same day as if the work had been protected since its creation.”

The federal appeals court in Denver, in upholding the law, said there were important First Amendment interests at stake on both sides. It concluded that there was reason to think that American authors and artists would be better off abroad if foreign authors and artists received expanded copyright protection here.

That economic calculation rankled Mr. Falzone. “You’re selling public property,” he said. “Congress literally took the public’s property and handed it over to foreign copyright owners.”