Imagine. You bought tickets to watch your favorite orchestra play symphonies by Prokofiev and Stravinsky. A week before the show, you get a notice in the mail: "The fill-in-the-blank orchestra can no longer play the originally scheduled program as the U.S. Supreme Court has affirmed the removal of these pieces from the public domain. Should you wish to hear these pieces, you will need to wait until we obtain clearance with the proper copyright owner and determine the premium we will be charging you for hearing what you once could hear for free." In a parallel universe, this may seem like an unlikely—and odd—scenario. Unfortunately, as discussed below, this is a very likely scenario due to the current state of our copyright laws.

Section 514 of the Uruguay Round Agreements Act (URAA)

In 1994, Congress passed legislation adopting Section 514 of the Uruguay Round Agreements Act (URAA), effectively amending the U.S. Copyright Act to include a provision providing for the restoration of copyright protections to certain foreign works already in the U.S. public domain but protected elsewhere. 17 U.S.C. § 104A. The move was Congress' attempt to carry out the Agreement on Trade-Related Aspects of Intellectual Property Rights, which mandated implementation of the first 21 articles of the Berne Convention. Article 18 of the Berne Convention requires countries to protect the works of other member states, unless the works' copyright term had already expired in either the country where protection is claimed or the country of origin.

Pursuant to Section 514 of the URAA, the U.S. Copyright Act now provides the same level of protection granted to U.S. works to preexisting works from Berne member countries. More specifically, copyright protection is now granted to works protected in their country of origin, but otherwise lacking protection in the United States for any of three reasons: the United States did not protect works from the country of origin at the time of publication; the United States did not protect sound recordings fixed before 1972; or the author had not complied with certain U.S. statutory formalities.

"Oh No, You Didn't!"

In 2001, various orchestra conductors, teachers, film archivists, and other members of the art and business world filed suit challenging the constitutionality of Section 514 of the URAA. The district court granted the Attorney General's motion for summary judgment, rejecting petitioners' arguments that Congress had exceeded its authority under the Copyright Clause and violated First Amendment guarantees of the Constitution. Golan v. Gonzales, No. Civ. 01-B-1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). The 10th Circuit Court of Appeals affirmed in part, agreeing that Congress had not offended the Copyright Clause, but concluding that further First Amendment inspection was required in light of Eldred v. Ashcroft, 537 U. S. 186 (2003) (affirming the constitutionality of the 1998 Copyright Term Extension Act's enlargement of a copyright's duration). Golan v. Gonzales, 501 F. 3d 1179 (2007). On remand, the district court granted the petitioners' summary judgment, finding that Section 514's limitation on the public domain was not justified by any asserted federal interests. The 10th Circuit reversed, determining that the law was narrowly tailored to fit important government interests in protecting U.S. copyright interests abroad. The petitioners appealed and the U.S. Supreme Court granted certiorari.

What About My First Amendment Rights?

In Golan v. Holder, No. 10-545, 132 S.Ct. 873 (U.S. Jan. 18, 2012), the petitioners argued that Section 514 violated their First Amendment rights because Congress was effectively removing works from the public domain that they previously had the right to perform or use. This, petitioners maintained, infringed their rights to free expression as it essentially takes speech away from the public and converts it into private property. A law that removes property collectively owned by the public should at least be subject to heightened First Amendment scrutiny. 

In his dissent, Justice Stephen Breyer expressed his own set of First Amendment concerns. Breyer pointed to various effects of the statute that he identified as, when taken together, speech-related harms implicating enough of a First Amendment interest to justify the exercise of greater scrutiny. Such speech-related harms include the higher royalty charges and administrative costs that foreign location of restored works implicate, as well as the technical difficulty in determining whether a work has in fact been restored or not. Of greatest importance, Breyer notes, is that "restored copyright" protection affirmatively removes material from the public domain. This reversal of accessibility to previously available works entails reversal of payment expectations and diminishes "Americans' preexisting freedom to use formerly public domain material in their expressive activities." "In literal terms," Breyer states, this "abridges a preexisting freedom to speak."

Writing for the majority, Justice Ruth Bader Ginsburg's response to petitioners, as well as the dissent: As the Copyright Clause and the First Amendment were adopted close in time, copyright protection is not antithesis to First Amendment guarantees but rather a means to promote free expression. Next, the "traditional contours" of copyright protection comprises of the "idea/expression dichotomy" codified in 17 U.S.C. § 102(b) and the fair use defense codified in 17 U.S.C. § 107. As to the former, Ginsburg asserts that one cannot copyright an idea, procedure, concept, principle or discovery; it is only the expressions by which such ideas are communicated that are protected. Further, the fair use defense provides that the reproduction in copies of copyrighted works "for purposes such as criticism, comment, news reporting, teaching, scholarship or research," shall not constitute an act of copyright infringement. Both aspects of copyright protection provide built-in First Amendment accommodations that sufficiently address free speech considerations. She concludes that such speech-protective purposes and safeguards are embraced in copyright law and therefore does not demand a need for the heightened review petitioners sought.

Congress' Authority: Too Much?

The Copyright Clause, found in Article I, Section 8, Clause 8 of the U.S. Constitution, grants 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 petitioners argued, with Breyer agreeing in his dissent, that the URAA does not encourage anyone to produce new culturally valuable works. The petitioners, as well as the dissent, read the Constitution's grant of power as mandating Congress provide exclusive rights in copyright for the purpose of promoting of science and useful arts. Without this effect or goal, Congress has overstepped its bounds.

Justice Ginsburg disagreed. Relying heavily on her prior opinion in Eldred v. Ashcroft, Ginsburg explained the Copyright Clause "does not demand that each copyright provision, examined discretely, operate to induce new works. Rather...the Clause empowers Congress to determine the intellectual property regimes that, overall, in that body's judgment, will serve the ends of the Clause. And those permissible ends...extend beyond the creation of new works."

Anything in It for the U.S.?

The Golan majority acknowledged and affirmed the constitutionality of Section 514 of the URAA, stating that there was no reason to question Congress' position that the statute provided a step toward building a stronger international copyright system. Where a statute is a rational exercise of legislative authority conferred to Congress by the Copyright Clause, the Court will defer substantially to Congress' findings. The rationale behind Section 514 is to not only ensure compliance with U.S. international obligations, but to remedy the unequal treatment of foreign authors while providing U.S. authors and copyright holders the benefit of greater protection in foreign markets against piracy of U.S. works abroad. The latter undoubtedly provides an attractive promise for copyright-intensive industries seeking to expand into foreign markets, as well as for the long-term objective of inducing greater investment in innovations and other creative works.

While painting a rosy picture of a hopeful future, only time will tell whether Congress' projections, as well as the majority's faith in Congress' position, are warranted.  In the meantime, your plans for the symphony may be altered while novels and other literary works are removed from your neighborhood bookstore.