The Supreme Court announced its decision in Golan v. Holder last week – a case with a large potential impact. At stake is 17 U.S.C. § 104A, which gave foreign authors U.S. copyright for works in which they lost their chance by not following the old registration and notice rules. The challengers were mainly concerned with orchestral music that they now have to pay for (like Prokofiev’s Peter and the Wolf), but there are thousands of foreign works that are affected by this.
As you may know, Section 104A was part of the Uruguay Rounds Agreement Act, which set the stage for the U.S. joining the WTO. A number of countries had complained that even though the U.S. had finally signed the Berne Convention, the U.S. hadn’t lived up to Article 18, which requires that a country give foreign authors their copyrights retroactively.
The majority, in an opinion written by Justice Ginsberg, upheld Section 104A against two challenges. First, Golan argued that the statute exceeded Congress’ authority under the Progress Clause. Second, Golan argued that pulling works out of the public domain violates the First Amendment by blocking what had been protected speech. The Court essentially held that the boundary between the public domain and copyrighted works is determined by statute, not by the Constitution. And if that’s true, then Congress is allowed to shift the boundary and move some works from the public domain into the copyrighted works category.
As I’ll explain, I think this is the right result. Whatever one thinks about the state of copyright law right now, making it a constitutional question isn’t the answer.
The vote was 6–2, with Justice Breyer dissenting, joined by Justice Alito. (Justice Kagan recused herself, probably because she worked on the case as solicitor general.)
What Say the Constitution?
Some people (like Larry Lessig) argue that the Constitution should actively protect the public domain, although they mainly focus on the length of copyright. But how far does it go? Is the public domain constitutionally protected, so that nothing that enters can ever be removed?
The Progress Clause of the Constitution (Article I, Section 8, Clause 8) is the basis for copyright laws in the U.S. today. It states that Congress has the 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.
In his dissent, Justice Breyer interpreted these words to mean that the purpose of copyright is to incentivize the creation of new works. But that’s not how the majority interpreted the clause.
Incentivizing Creativity vs. Creating a Limited Monopoly
Here’s my take on what the majority is saying. The purpose of copyright is to incentivize the widespread dissemination of works; that is what “promotes the Progress of Science and useful Arts,” so long as you strike a balance by preventing a perpetual monopoly. (Critics’ main point has been that copyright lasts so long now that it’s essentially perpetual, but that’s a separate question.)
Human beings are creative. Ancient humans made drawings on cave walls. Music has existed for thousands of years. People have told stories for millennia as well. People don’t need copyright to spur their creativity. As Lord Kames wrote in the Scottish case of Hinton v. Donaldson (1773),
The composer of a valuable book has great merit with respect to the public: his proper reward is approbation and praise, and he seldom fails of that reward. But what is it that entitles him to a pecuniary reward? If he be entitled, the composer of a picture, of a machine, and the inventor of every useful art, is equally entitled. Such a monopoly, so far from being founded on common law, is contradictory to the first principles of society.
… What shall be said of the art of printing? If the monopoly of this useful art was to be perpetual, it would be a sad case for learned men, and for the interest of learning in general: it would enhance the price of books far beyond the reach of ordinary readers. Such a monopoly would raise a fund sufficient to purchase a great kingdom. The works alone of Shakespeare, or of Milton, would be a vast estate.
As a little background, Donaldson was a Scottish reprinter (i.e., a pirate) who openly defied the English printers’ attempts to monopolize works that were no longer copyrighted. Before the Statute of Anne created copyright law in 1710, English printers tried to make printing profitable by maintaining their own registry of works, which they often had the power to legally enforce. The English printers argued that their monopoly rights should last indefinitely, no matter what the Statute of Anne said.
Neither the majority nor the dissent cited Hinton, although Justice Breyer considered the later (and much more famous) English case involving Donaldson, Donaldson v. Beckett. (Donaldson kept antagonizing the English printers. He actually set up a shop in London where he openly sold unauthorized reprints, basically daring them to sue him.)
In Beckett, the House of Lords, by a 22–11 vote, held that there was no perpetual right to “literary property.” Copyright was created by the Statute of Anne, for a limited time, not by the common law. (The original term was 14 years, plus another 14 years if the author was alive when the first term expired.)
Justice Breyer argued that the English government had made a decision to convert perpetual “literary property” into copyright with a limited term, and this decision was made to serve the public interest. That is, copyright was a right until it wasn’t any more. This led him to conclude that copyright law that isn’t in the public interest is unconstitutional.
Ok, So Is It a Property Right?
The questions the Lords addressed were about the nature of copyright, like the Court here. Is it like property, that is, is it a right? Or is it a limited monopoly granted by the government? The House of Lords, like the majority of the Court, held that copyright is not a right.
If copyright isn’t a right, then the Progress Clause has nothing to tell us about where Congress may draw the line, except that copyright must be for a limited time. And that’s what Justice Ginsberg’s opinion for the Court essentially said.
The main issue before the Court was whether the statute was within Congress’ authority to create given any limits on its authority in the Constitution. The Court held that it was.
The majority didn’t pass judgment on the wisdom of section 104A of the Copyright Act, which grants copyright to foreign works that would have been copyrighted but for the failure to follow the U.S.’s formal rules. (And let’s note that there were attempts to get rid of those formalities starting in the 1920s. The sheer number of different interested groups and conflicting concerns ensured that proposed legislation failed to pass repeatedly. It took until 1988 to do away with the last of those formalities, the requirement to put a notice on a work.) The majority found that Congress had a rational basis for enacting the law, and that was enough.
As for the First Amendment issue, the Court’s basic answer had two parts: 1) copyright only protects expressions, not ideas, so ideas aren’t being limited, only particular expressions; and 2) there’s still fair use. Whether that’s sufficient in practice is a different question.
Personally, I think the Court has it right. Copyright isn’t a right, nor is the public domain. It’s a boundary that’s set by statute (and interpreted by the courts).
And in this situation, there has been a broad consensus since the 1920s that we needed to join the Berne Convention. Foreign authors just got caught up in politics, both national and international. I don’t think it makes much sense to treat foreign works differently just because the U.S. lawmaking process took so long to do the right thing.
It’s easy to lump this decision in with Eldred v. Ashcroft, which upheld the Copyright Term Extension Act (that extended copyright terms from life + 50 years to life + 70 years), because in both cases there are works that were public domain (or would have been public domain soon) that are now kept under copyright protection. But I don’t think that retroactively treating foreign authors the way we treat U.S. authors is the same as progressively lengthening copyright terms to the point that Prince’s song “1999” will probably be protected by copyright after 2100.
This is an important case, so you may want to read the Court’s decision yourself.