The Blockbuster Case

This Supreme Court term is filled with blockbuster cases. What is a “blockbuster” case, you might ask? It’s a case of such significance, where the conflicting interests are so clearly articulated and the outcome so uncertain, that the general public actually begins to pay attention. Sure, every case the High Court touches really matters. But certain cases really become part of the national conversation, opening legal debates beyond the circles of nerdy lawyers and academics.

This term, for example, the Court already determined that law enforcement violated the Fourth Amendment when they attached a GPS device to a suspect’s car without a warrant. In a few short months, the Justices will decide whether President Obama’s Patient Protection and Affordable Care Act exceeds the bounds of the commerce clause. Both are receiving extensive public attention.

For those of you out there who create intellectual property, one case this term should have been a blockbuster, but somehow passed quietly through the news cycle.

Golan v. Holder, one of the most important copyright cases in years, was decided last month in a 6-2 decision (with Justice Elena Kagan not taking part). Golan deals with the extent of domestic copyright protection granted to foreign creative works. Enacted in 1886, the Berne Convention is the major treaty governing international copyright protection. It requires member countries to grant foreign works the same copyright protection as works created by citizens. The United States joined Berne about a century late, in 1989. Even then, it did not really protect foreign works as the treaty required. Consequently, some foreign works never received copyright protection in this country. Rapidly increasing globalization in the 1990s seemed to alert Congress to this situation, and in 1994, the U.S. enacted the Uruguay Round Agreements Act (URAA) to bring us into compliance with Berne.

The URAA affected millions of works, by the estimation of the Copyright Office, mostly works first published abroad from 1923 to 1989 that had earlier not been eligible for domestic copyright protection. Affected works include symphonies like Prokofiev’s Peter and the Wolf, books by C. S. Lewis and Virginia Woolf, and paintings by Picasso.

Suddenly, these works were essentially removed from the public domain. The URAA was thus challenged by a collection of teachers, conductors, and filmmakers who had relied for years on the free availability of such works.

Golan considered whether Congress has the constitutional power to revive copyright protection of a creative work once it has expired. To answer this broad question, the Court heard a two-pronged challenge. First, the case tests whether the Copyright Clause (Art. I, §8, Cl. 8.) gives Congress the authority to remove a work from the public domain. Second, the case asks whether the 1994 law at issue violates the free speech rights of those freely performed or distributed the affected works (namely the aforementioned teachers, conductors, and filmmakers).

In her majority opinion, Justice Ruth Bader Ginsburg gave a clear answer: the national legislature has the authority to withdraw works from the public domain and give them full copyright protection. No one gains any personal rights under the Constitution to copy or perform a works that have fallen out of copyright if Congress later restores that protection. If those composers and filmmakers want to use those works after they regain protection, “the right to perform… must be obtained in the marketplace,” Justice Ginsburg wrote. In other words, royalties.

The Court was supportive of Congress’s goal of standardizing copyright protection by putting foreign and domestic works under “the same legal regime.” The URAA continues “the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first published,” the decision noted.

Perhaps the facts of this case were a bit too complex for the national media to condense into a short news segment. But there is a dramatic conflict here, one as old as copyright itself: To what extent should the rights of creators be preserved over the rights of users and adapters?

Many copyright activists, notably Lawrence Lessig of Harvard Law School, passionately decry laws such as the URAA that extend copyright protection for creators without creating incentives for making new works. (C.S. Lewis, such scholars would argue, isn’t going to be incentivized to create anything new for society thanks to the URAA). So what exactly is the purpose of such a law, when the constitutional goal of intellectual property is “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their” work? The dissent by Justice Breyer, joined by Justice Alito, sides with this line of reasoning, noting that the URAA does not satisfy the Copyright Clause because it “does not encourage anyone to produce a single new work.”

But like it or not, the (majority of the) Court has spoken. Chalk another victory up for the copyright holders.

Brian Farkas