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January 26, 2012 / screwvala

Burned by Berne?

To achieve full compliance with the Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”), in 1994 Congress amended the Copyright Act to remove certain foreign works from the public domain.

Prior to the 1994 amendment, the United States did not recognize copyright for foreign works in three distinct categories: 1)  from countries where the United States had no formal copyright relationship; 2) where the foreign works failed to comply with copyright formalities under U.S. law; and 3) for sound recordings fixed prior to 1972 which had no protection in the U.S.  The amendment, therefore, had the effect of suddenly transforming large amounts of public domain material into protected works.

In Golan v. Holder, a diverse array of individuals, including orchestra conductors, educators, publishers and performers challenged Congress’ action. Prior to 1994, petitioners had enjoyed the opportunity to exploit foreign works in the public domain and to create derivative works based upon them without the need to seek permission or to pay a fee. Justice Ginsburg, writing for a 7-2 majority, rejected plaintiffs’ arguments that Congress exceeded its authority under both the Copyright and Patent Clause (Art. I, Sec. 8, cl. 8) and the limitations imposed by the First Amendment.

According to the petitioners, once a work has passed into the public domain, Congress no longer has authority to create a new term of copyright protection. The majority, however, easily dismissed this argument.  The Court first pointed out that the text of the Copyright and Patent Clause of the Constitution did not limit Congress’ authority as petitioners argued. The majority also held that the Court’s prior precedent in Eldred v. Ashcroft foreclosed petitioners’ argument. Eldred considered whether Congress had the authority to extend the copyright on existing works pursuant to the Copyright Term Extension Act (“CTEA”). The Eldred Court refused to read the “by securing for a limited time” in the Copyright and Patent Clause to prescribe Congress from extending the term of existing copyrights. Since, like the CTEA, the 1994 amendments established a limited period for which the foreign works would now enjoy copyright protection, Congress acted squarely within its authority.

The majority also rejected petitioners’ First Amendment argument. Turning once again to Eldred for guidance, the Court explained the tension that exists between copyright protection and the First Amendment. The majority observed that copyright protection naturally acts as a restriction on expression. At the same time, however, the Court also recognized that the framers of the Constitution considered copyright protection as “an engine of free expression” by providing an “economic incentive to create and disseminate ideas.” Copyright protection extends only to the expression of an idea, not the idea itself. The distinction between ideas and expressions, according to the majority, strikes an appropriate balance between the sometimes competing interests of the Copyright Act and the First Amendment. Finding that the  the balance between these competing interests was not altered, the majority held that the First Amendment was not offended by the 1994 amendments.

In dissent, Justices Breyer and Alito emphasized their view their view that the primary objective of the Copyright and Patent clause was to promote the creation of new works. The protection afforded to foreign works in the 1994 amendment, in their estimation, would not lead to the creation of new works. Going a step further, the dissent posited that the extension of copyright protection at issue in Golan actually inhibited the creation of new work. Since that runs contrary to the nature of Congress’ authority under the Constitution, the dissent would have struck down the amendment.

The decision can be found here.

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