Copyright Restoration of Public Domain Works

The same day the online blackout of SOPA and PIPA protested the broadening of copyright law as censorship, the US Supreme Court issued its 6-2 opinion in Golan v. Holder, a copyright case that may possibly have greater impact on scholars, librarians, and archivists. Plaintiffs, a group of conductors, educators, and others challenged the constitutionality of the Uruguay Round Agreements Act (URAA) of 1994 which removed millions of books, films, songs, and other creative works, mostly foreign, from the public domain to "restore" their copyrights in order to bring the US into compliance with international agreements on intellectual property Section 514 of the URAA restored copyrights in certain foreign works that were previously in the public domain in the US. Included among the works were Prokofiev's "Peter and the Wolf," the symphonies of Shostakovich, Picasso's "Guernica," the English films of Alfred Hitchcock, Fritz Lang’s Metropolis and the musical compositions of Stravinsky.

Plaintiffs, who relied on the availability of these artistic works in the public domain for their livelihoods, sued the federal government challenging the constitutionality of the URAA. The 10th Circuit Court of Appeals ruled that § 514 of the URAA was within Congress’s power under the Copyright Clause and that it did not violate the free speech and expression rights of the plaintiffs who had enjoyed freely using the foreign works that had been in the US public domain before restoration.

Justice Ginsburg writing for the majority (Justices Breyer and Alito dissenting) found that "neither the Copyright and Patent Clause nor the First Amendment ... makes the public domain, in any and all cases, a territory that works may never exit." The plaintiffs argued that removing works from the public domain and putting them back under private ownership violated the "limited Times" restriction of the Copyright Clause of the US Constitution (Art I, §8, Clause 8) which states: “The Congress shall have Power ... 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.” While prohibiting perpetual copyright, it does not specify how long that term can be, nor does it impose any restriction on the number of times the term may be extended. Since 1790, Congress, has extended copyright term four times. The Court in Eldred v. Ashcroft, 537 US 186 (2003), rejected the argument that the Sonny Bono Copyright Term Extension Act passed in 1998 created a de facto "perpetual copyright on the installment plan".

The court rejected the argument that restoration of copyright for works in the public domain is inconsistent with the purposes of the "limited Times" requirement, holding instead that "limited Times" simply means "not forever." The term of restored copyright, the court noted, is not perpetual, and therefore Congress acted within its power. As for the possibility that Congress would enact more restorations to achieve perpetual copyright on the installment plan, the court held that the possibility of this "hypothetical legislative misbehavior" was not worth considering. The Court also rejected the plaintiff’s First Amendment argument, but Justice Ginsburg said “some restriction on expression is the inherent and intended effect of every grant of copyright.” But the Court said Congress’ move to re-copyright the works to comport with an international treaty was more important.

For more on the topic, see the Brooklyn Law School Library’s online edition of Copyright and the Public Domain by Stephen Fishman (2011) which brings clarity to the question of what is protected by copyright and what is not. In plain language, it explains how and why works of authorship enter the public domain. It provides detailed coverage of copyright requirements, the duration of copyright, copyright forfeiture and abandonment, the publication requirement, restoration of copyrights to foreign works under GATT, conducting copyright renewal searches, non-copyright restrictions that may protect works in the public domain, and many other important issues.