For the second time in nine years, the United States Supreme Court has weighed in on the relationship between copyright law and the First Amendment. The Court’s decision in Golan v. Holder upholds a statute restoring U.S copyright protection to certain foreign works previously in the public domain.
At a time when the political branches are engaging in controversial new efforts to update intellectual property law for the Internet age, the opinion affirms that Congress re-affirms that Congress is due great deference in the copyright realm, and rejects several sweeping arguments that could have curtailed future copyright legislation.
It is somewhat ironic, then, that the Golan case involved the oldest of old media. For decades, foreign artistic works could fall into the public domain in the United States despite remaining protected by the copyright laws of their nations of origin. This gave Americans broad freedom to perform or otherwise reproduce many foreign works, but it also alienated the United States from international intellectual property norms. Under the Berne Convention for the Protection of Literary and Artistic Works, which was first established in 1886, a growing number of nations had agreed to extend similar copyright protection to both foreign and domestic works.
The United States joined the Berne Convention in 1989, but did not immediately agree to restore copyright to foreign works that had entered the public domain in this country but not in their home country. This stirred resentment among some of the other 163 Berne member states, and the grievances became more potent in 1994 with the establishment of a new enforcement mechanism through the World Trade Organization. Congress responded that same year by enacting Section 514 of the Uruguay Round Agreements Act (codified as 17 U.S.C. § 104A). The law had its greatest impact on a broad category of works that were published internationally between 1923 and 1989, that still enjoyed protection abroad, and that fell into the public domain in the U.S. due to (i) failure to comply with copyright formalities, (ii) lack of subject matter protection, or (iii) lack of national eligibility due to the absence of copyright relations with the U.S. Section 514 restored copyright in these works until the term for each one would have expired had the author initially obtained such protection. Congress sought to soften the blow for those who had relied on the free availability of such works by including a grace period and other protections in the new law.
The Golan litigation began in 2001 when a group of plaintiffs including orchestra conductors, teachers, publishers, and film distributors and archivists sued the federal government, arguing that Congress unconstitutionally restricted their access to foreign public domain works. After two decisions by the Tenth Circuit, the Supreme Court granted review and issued its opinion on January 18, 2012. Justice Ruth Bader Ginsburg wrote for the 6-2 majority that upheld Section 514 (Justice Elena Kagan, recently the United States Solicitor General, was recused).
First, the Court rejected the plaintiffs’ challenge based on the Copyright Clause itself. Article I, Section 8, clause 8 of the Constitution provides the basis for the nation’s intellectual property regime by giving Congress the power “[t]o 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.” The plaintiffs argued that by its very language the Constitution prevents Congress from restoring copyright protection to works that have already entered the public domain.
In its 2003 decision in Eldred v. Ashcroft, the Supreme Court rejected a similar contention that the 1998 Copyright Term Extension Act, which added 20 years to the existing term of copyrighted works, ran afoul of this “limited Times” language. Justice Ginsburg, who authored the Eldred decision, wrote that the precedent was largely dispositive of the plaintiffs’ Copyright Clause argument in Golan. Quoting the Eldred opinion, Justice Ginsburg explained that the word “limited” does not mean “fixed” or “inalterable,” but “[r]ather, the term is best understood to mean ‘confine[d] within certain bounds,’ ‘restrain[ed],’ or ‘circumscribed.’” The Court held that the statute was consistent with the Copyright Clause because Section 514 did not create any perpetual copyrights.
The plaintiffs had argued that granting such broad leeway to Congress could enable legislators to enact successive copyright terms that would effectively result in perpetual exclusive rights. Justice Ginsburg rejected this hypothetical argument, writing that by “aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once disfavored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of perpetual copyrights.”
The Court also rejected the plaintiffs’ argument that Section 514 failed to advance the core purpose of copyright law—incentivizing of creative activity—because it dealt exclusively with preexisting works. Disagreeing, the Court held that each individual provision of copyright law does not need to induce the creation of new works; rather, Congress has broad authority to pass laws that serve the overall purpose of the Copyright Clause by promoting the creation or dissemination of creative works. Congress, the Court concluded, “rationally could have concluded” that Section 514 served this objective because a “well-functioning international copyright system would likely encourage the dissemination of existing and future works.”
Turning to the plaintiffs’ First Amendment challenge, the Court began by recognizing “that some restriction on expression is the inherent and intended effect of every grant of copyright.” However, the Court noted that the its prior decisions in Eldred and the 1985 case Harper & Row, Publishers, Inc. v. Nation Enterprises, established that the First Amendment and Copyright Clause were nonetheless complementary. The decisions harmonized the provisions by explaining that copyright law contains two powerful built-in protections for free speech that alleviate any First Amendment concerns. The idea/expression dichotomy ensures that only expression can be protected and that there are no exclusive rights in ideas, while the fair use defense permits certain license-free uses of copyrighted works for criticism, scholarship, news reporting and other such ends. Following Harper & Row and Eldred, the Golan Court determined that because of the “speech-protective purposes and safeguards embraced by copyright law,” there was no need to apply heightened First Amendment scrutiny to Section 514. Therefore, it applied the same deferential standard of review it used to dismiss the Copyright Clause challenge, concluding that it was sufficient that Congress acted rationally in enacting the statute.
To distinguish their claim from Eldred and Harper & Row, the Golan plaintiffs argued that the disruption to the public domain created a unique First Amendment harm. But the Court disagreed, holding that “nothing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain.” Justice Ginsburg wrote that any harm to free expression resulting from the restoration of copyright protection to foreign works previously in the public domain was minimal. “Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace. This is the same marketplace, of course, that exists for the music of Prokofiev’s U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers.”
Justice Ginsburg concluded the Court’s decision by again stressing the breadth of Congress’ authority to pass laws that rationally further the broad goals of the Copyright Clause. “Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches.”
Dissenting, Justice Stephen Breyer (joined by Justice Samuel Alito) argued that by restoring protection to public domain works, Section 514 in fact inhibited the dissemination of creative works, in contravention of purpose of the Copyright Clause. Justice Breyer noted that the “price of a score of Shostakovich’s Preludes and Fugues Op. 87, for example, has risen by a multiple of seven.” Moreover, the dissent argued that Section 514 created new “administrative costs, such as the costs of determining whether a work is the subject of a ‘restored copyright,’ searching for a ‘restored copyright’ holder, and negotiating a fee.” The latter problem is especially pronounced, Justice Breyer noted, in the case of “orphan works” whose dissemination is severely limited because of their elusive ownership.
The Golan majority acknowledged the orphan work problem as well. But in a passage emblematic of the deference to Congress that will likely be the enduring legacy of the Golan decision, Justice Ginsburg concluded that it was not “a matter appropriate for judicial, as opposed to legislative, resolution.”