Copyright Restoration Arguments at the U.S. Supreme Court

No musicians played on the steps of the Supreme Court in October, when inside the justices heard oral arguments in Golan v. Holder, 10-545 (available at www.supremecourt.gov/qp/10-00545qp.pdf), which touched on a range of intellectual property issues and musical works from classical's Dmitri Shostakovich and Igor Stravinsky to classic rock's Jimi Hendrix. The discussion about copyright protection in view of the global market also touched on Shakespeare and Alexis de Tocqueville. But the impact of how the high court interprets Congress' 1994 amendments to the Copyright Act, '514 of the Uruguay Round Agreements Act, codified at 17 U.S.C. '104A, could affect the future use of possibly millions of pieces of works and may refine how U.S. law defines acceptable use versus infringing abuse in a global community.

From Public Domain To Protected

When the United States signed on to the Berne Convention for the Protection of Literary and Artistic Works in 1988, it joined with more than 140 other signatory countries in granting copyright protection to foreign works. The treaty equalized copyright protection by granting similar rights in foreign countries as in the country of origin. Section 514 grants foreign authors similar protections in the United States that they have in their home countries.

The Golan case presented a complicated array of issues: historical development of copyright law, congressional powers, statutory interpretation, U.S. conformity with international intellectual-property standards, and whether or how these interests implicate the First Amendment.

“Section 514 did something unprecedented in American copyright law,” said petitioners' counsel, Anthony Falzone of the Stanford Law School Center for Internet and Society. “It took millions of works out of the public domain, where they had remained for decades as the common property of all Americans. That violated the copyright clause and the First Amendment.”

Within seconds of his opening, Falzone came under heavy questioning from Justice Ruth Bader Ginsburg on Congress' authority to set copyright limits on a variety of works and how they relate to the public domain. Foreign authors or composers, who were not afforded the same level of copyright protection in the U.S., had their works automatically enter the public domain, which prompted Ginsburg, whose love for opera is well-documented, to ask: “We are talking about Shostakovich, Stravinsky, and I say: Well, what's wrong with giving them the same time that Aaron Copland got?”

Falzone then delved into the history of copyright protection in the United States with the initial Copyright Act of 1790, which he said was day zero for copyright protection in the United States. The act did not provide protection for foreign authors. Over the years, Congress amended the Copyright Act 19 times, but Falzone said that “the decision to make foreign authors ineligible is a decision that Congress has never gone back on.” He described the history on this as “crystal clear.”

The Golan case came to the Supreme Court from the U.S. Court of Appeals for the Tenth Circuit, which held that the statute did not violate the First Amendment or congressional authority to define standards and terms for copyright protection. Golan v. Holder, 609 F.3d 1076 (10th Cir. 2010).

Led by Lawrence Golan, a University of Denver music professor and symphony conductor, the petitioners challenged the law, which they argue violated their First Amendment rights because it would put international musical and literary works that had been in the public domain for decades under new copyright protection. This new standard could chill speech (or performances), they argued, and could require users to pay royalties to perform or use works by foreign composers or authors.

More than 40 parties lined up with 22 amici briefs. Some groups that would normally align on the same side when it comes to the First Amendment took a different view with this case because the statute has financial implications for copyrighted works as much as it has free speech and press implications. Amici groups associated with the entertainment industry believe that their intellectual property (films, music, books) will be afforded more protection in other countries as a result of this law.

While U.S. Solicitor General Donald Verrilli focused on the history of American copyright law, too, he was quick to describe '514 as “a matter of foreign relations.” The amendment, he said, brings the U.S. into compliance with the Berne Convention, which is “the price of admission to the international system.” This, he said, helps provide incentives for creators under the protections articulated in the U.S. Constitution, Article I, '8, clause 8. Perhaps one of the most forward-thinking aspects of the Constitution, this provides congressional power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.

“We decided, the policymaking branches of our government, the executive and the Congress, decided that we needed to be, and [it] was in the national interest, to be part of the international copyright system and to join the Berne Convention to accomplish that,” Verrilli said. “The reason we did so was because our intellectual property is subject to very serious levels of piracy in many foreign countries because of under-enforcement.”

Justice Antonin Scalia voiced concern over this justification, questioning whether congressional or constitutional authority over copyright should be the subject of agreements between “the Senate, the President and Zimbabwe.” Scalia added: “I do not think a treaty can expand the powers of the federal government. I mean, this is either OK under the copyright clause or it isn't.”

Congressional Authority

Although the justices' questions at oral argument raised interesting points on how the government incorporated works under the original copyright act in 1790 and through subsequent amendments added new time limits and types of materials that can be protected, the overall question of congressional authority ' a key point in arguments on both sides ' might already be answered. One of the Supreme Court's copyright cases, Eldred v. Ashcroft, 537 U.S. 186 (2003) (www.law.cornell.edu/supct/html/01-618.ZO.html), played a central role in both sides' arguments. Eldred upheld Congress' authority to extend copyright protection by 20 years through what became known as the Sonny Bono Copyright Term Extension Act. In Eldred, Justice Ginsburg rejected the argument that this not only exceeded Congress' authority but violated the First Amendment. Importantly, the court refused to apply strict scrutiny to its analysis.

Verrilli reiterated Eldred, calling on the court to follow that decision's lower level of judicial scrutiny. He also minimized '514's effect on the First Amendment, following Chief Justice John Roberts Jr.'s question about being able to perform a piece of music one day but not being able to the day after a change in the law: “There is something at least at an intuitive level appealing about Mr. Falzone's First Amendment argument. One day I can perform Shostakovich; Congress does something, the next day I can't. Doesn't that present a serious First Amendment problem?”

The chief justice further refined his question by invoking Hendrix and his famous rendition of the “Star Spangled Banner” and whether Hendrix might have had some copyright protection under the Act. “And that's just one example of many, where you take existing works and you have a derivative work or something that is distinctive to you. So those people are just out of luck?” the chief justice asked. [Editor's Note: Derivative works made prior to '104 copyright restoration of a foreign copyright could continue to be used if the owner of the restored copyright receives reasonable compensation.]

Verrilli, positing that that might be a fair use exception, noted that “the copyright clause already contains very significant accommodations of First Amendment interests.”

No musicians played on the steps of the Supreme Court in October, when inside the justices heard oral arguments in Golan v. Holder, 10-545 (available at www.supremecourt.gov/qp/10-00545qp.pdf), which touched on a range of intellectual property issues and musical works from classical's Dmitri Shostakovich and Igor Stravinsky to classic rock's Jimi Hendrix. The discussion about copyright protection in view of the global market also touched on Shakespeare and Alexis de Tocqueville. But the impact of how the high court interprets Congress' 1994 amendments to the Copyright Act, '514 of the Uruguay Round Agreements Act, codified at 17 U.S.C. '104A, could affect the future use of possibly millions of pieces of works and may refine how U.S. law defines acceptable use versus infringing abuse in a global community.

From Public Domain To Protected

When the United States signed on to the Berne Convention for the Protection of Literary and Artistic Works in 1988, it joined with more than 140 other signatory countries in granting copyright protection to foreign works. The treaty equalized copyright protection by granting similar rights in foreign countries as in the country of origin. Section 514 grants foreign authors similar protections in the United States that they have in their home countries.

The Golan case presented a complicated array of issues: historical development of copyright law, congressional powers, statutory interpretation, U.S. conformity with international intellectual-property standards, and whether or how these interests implicate the First Amendment.

“Section 514 did something unprecedented in American copyright law,” said petitioners' counsel, Anthony Falzone of the Stanford Law School Center for Internet and Society. “It took millions of works out of the public domain, where they had remained for decades as the common property of all Americans. That violated the copyright clause and the First Amendment.”

Within seconds of his opening, Falzone came under heavy questioning from Justice Ruth Bader Ginsburg on Congress' authority to set copyright limits on a variety of works and how they relate to the public domain. Foreign authors or composers, who were not afforded the same level of copyright protection in the U.S., had their works automatically enter the public domain, which prompted Ginsburg, whose love for opera is well-documented, to ask: “We are talking about Shostakovich, Stravinsky, and I say: Well, what's wrong with giving them the same time that Aaron Copland got?”

Falzone then delved into the history of copyright protection in the United States with the initial Copyright Act of 1790, which he said was day zero for copyright protection in the United States. The act did not provide protection for foreign authors. Over the years, Congress amended the Copyright Act 19 times, but Falzone said that “the decision to make foreign authors ineligible is a decision that Congress has never gone back on.” He described the history on this as “crystal clear.”

The Golan case came to the Supreme Court from the U.S. Court of Appeals for the Tenth Circuit, which held that the statute did not violate the First Amendment or congressional authority to define standards and terms for copyright protection. Golan v. Holder , 609 F.3d 1076 (10th Cir. 2010).

Led by Lawrence Golan, a University of Denver music professor and symphony conductor, the petitioners challenged the law, which they argue violated their First Amendment rights because it would put international musical and literary works that had been in the public domain for decades under new copyright protection. This new standard could chill speech (or performances), they argued, and could require users to pay royalties to perform or use works by foreign composers or authors.

More than 40 parties lined up with 22 amici briefs. Some groups that would normally align on the same side when it comes to the First Amendment took a different view with this case because the statute has financial implications for copyrighted works as much as it has free speech and press implications. Amici groups associated with the entertainment industry believe that their intellectual property (films, music, books) will be afforded more protection in other countries as a result of this law.

While U.S. Solicitor General Donald Verrilli focused on the history of American copyright law, too, he was quick to describe '514 as “a matter of foreign relations.” The amendment, he said, brings the U.S. into compliance with the Berne Convention, which is “the price of admission to the international system.” This, he said, helps provide incentives for creators under the protections articulated in the U.S. Constitution, Article I, '8, clause 8. Perhaps one of the most forward-thinking aspects of the Constitution, this provides congressional power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.

“We decided, the policymaking branches of our government, the executive and the Congress, decided that we needed to be, and [it] was in the national interest, to be part of the international copyright system and to join the Berne Convention to accomplish that,” Verrilli said. “The reason we did so was because our intellectual property is subject to very serious levels of piracy in many foreign countries because of under-enforcement.”

Justice Antonin Scalia voiced concern over this justification, questioning whether congressional or constitutional authority over copyright should be the subject of agreements between “the Senate, the President and Zimbabwe.” Scalia added: “I do not think a treaty can expand the powers of the federal government. I mean, this is either OK under the copyright clause or it isn't.”

Congressional Authority

Although the justices' questions at oral argument raised interesting points on how the government incorporated works under the original copyright act in 1790 and through subsequent amendments added new time limits and types of materials that can be protected, the overall question of congressional authority ' a key point in arguments on both sides ' might already be answered. One of the Supreme Court's copyright cases, Eldred v. Ashcroft , 537 U.S. 186 (2003) ( www.law.cornell.edu/supct/html/01-618.ZO.html ), played a central role in both sides' arguments. Eldred upheld Congress' authority to extend copyright protection by 20 years through what became known as the Sonny Bono Copyright Term Extension Act. In Eldred, Justice Ginsburg rejected the argument that this not only exceeded Congress' authority but violated the First Amendment. Importantly, the court refused to apply strict scrutiny to its analysis.

Verrilli reiterated Eldred, calling on the court to follow that decision's lower level of judicial scrutiny. He also minimized '514's effect on the First Amendment, following Chief Justice John Roberts Jr.'s question about being able to perform a piece of music one day but not being able to the day after a change in the law: “There is something at least at an intuitive level appealing about Mr. Falzone's First Amendment argument. One day I can perform Shostakovich; Congress does something, the next day I can't. Doesn't that present a serious First Amendment problem?”

The chief justice further refined his question by invoking Hendrix and his famous rendition of the “Star Spangled Banner” and whether Hendrix might have had some copyright protection under the Act. “And that's just one example of many, where you take existing works and you have a derivative work or something that is distinctive to you. So those people are just out of luck?” the chief justice asked. [Editor's Note: Derivative works made prior to '104 copyright restoration of a foreign copyright could continue to be used if the owner of the restored copyright receives reasonable compensation.]

Verrilli, positing that that might be a fair use exception, noted that “the copyright clause already contains very significant accommodations of First Amendment interests.”