Blown To Bits

Retroactive Copyright on Public Domain Works

Sunday, June 27th, 2010 by Harry Lewis

A federal appeals court has handed down a worrisome decision in the case of Golan v. Holder et al (decision available on DocStoc here). As part of the Uruguay Round Agreements (“URAA”) on international copyright, the U.S. agreed to extend copyright protection to certain foreign works which had previously been in the public domain in the U.S. Indeed, some of those erstwhile public domain works had been used by U.S. artists and writers to create derivative works. For example, one Richard Kapp, now deceased but whose estate is a plaintiff in the case, used a sound recording based on works by Dmitri Shostakovich to create a work of his own. Having in good faith acted creatively with public domain works, such plaintiffs now find that Congress has cut their legs out from under them, and maintained that Congress infringed their First Amendment rights.

The courts that dealt with the case went back and forth and this judicial stop is probably not its last. The court ruled that the government had sufficient reason to act as it did. Here is the key sentence, from page 12 of the decision.

The government argues on appeal that Section 514 is narrowly tailored to advancing three important governmental interests: (1) attaining indisputable compliance with international treaties and multilateral agreements, (2) obtaining legal protections for American copyright holders’ interests abroad, and (3) remedying past inequities of foreign authors who lost or never obtained copyrights in the United States. We hold that the government has demonstrated a substantial interest in protecting American copyright holders’ interests abroad, and Section 514 is narrowly tailored to advance that interest.

In other words, there are American copyright holders (the Motion Picture Association of America and several other agents of the content industries presented themselves as amici) who stand to benefit, because their works, previously in the public domain abroad, will now be protected. The judge carefully stated that he was offering no opinion on rationales (1) and (3).

Copyright and free speech are always in some tension. There is ample reason to believe that copyright has been the winner in that dynamic for the past 15 years or so. What is interesting here is the deference the U.S. is giving, and the court is supporting, to an international treaty as the basis for copyright expansion. Because the protests over the drafted-in-secret Anti-Counterfeiting Trade Agreement, ACTA, are getting intense. See Public Knowledge’s take and invitation to write to the White House. So the combination of treaty and copyright in the Golan case sounds alarm bells. Stay tuned.

On ACTA, see also the statement on the site of the Program on Information Justice and Intellectual Property.

3 Responses to “Retroactive Copyright on Public Domain Works”

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