Losing our focus

Today the Supreme Court issued a decision in the case of Golan v. Holder which is a significant defeat, I think, for the public domain in the United States.  Reading the opinion has made me wonder if we have really strayed from our fundamental commitments about intellectual property.

The case involved the complex and technical issue of restored copyrights in foreign works – works that were originally created and published abroad.  As part of the U.S.’s decision to join the Berne Convention and other international treaties on intellectual property, Congress enacted an amendment to the Copyright Act, now found in section 104A, that restored copyright in foreign works that had risen into the public domain in the U.S. but were still protected in their countries of origin.  The effect was to remove works from the public domain after they had already lawfully become the property of every U.S. citizen.  Several groups, including musicians, publishers and others who had relied on the ability to freely exploit these public domain works, brought a lawsuit to challenge the constitutionality of this unprecedented alteration in the terms of the copyright bargain.

Those groups lost today.  Six Justice of the Court found that the “Uruguay Round Agreements Act,” which enacted this restoration of copyrights, neither exceeded Congressional authority under the copyright and patent clause of the Constitution nor created a conflict with the guarantee of free expression found in the First Amendment.  The full decision can be found here, and there is a brief report from the Chronicle of Higher Education as well.  For me, several recent readings and discussions provided a context as I read the decision.

Last night my colleague Will Cross and I were teaching a class session on copyright for library students.  Will discussed (among other things) two aspects or principles of copyright decision making that seem relevant to today’s decision.  First was the idea that the federal courts tend to show great deference to Congress in the area of copyright.  That deference is very evident in today’s majority opinion: “This Court has no warrant to reject Congress’ rational judgment that exemplary adherence to Berne would serve the objectives of the Copyright Clause.”

The other principle Will discussed was the incentive purpose that is given as the reason, in the Constitution, for allowing Congress to enact intellectual property laws.  This purpose is pretty clearly rejected by the majority, when Justice Ginsberg writes that “Nothing in the text or history of the Copyright Clause, moreover, confines the ‘Progress of Science’ exclusively to ‘incentives for creation.’”  It is hard to see how else that clause can be read, and Justice Breyer, in his dissent, provides a compelling account of why the U.S. enacted copyright in the first place, and why it is supposed to be limited.  He goes on to note that “The statute before us, however, does not encourage anyone to produce a single new work.”

It seems clear to me, as it does to Justice Breyer, that the wording of the Constitution’s Copyright Clause was to restrain Congress and direct that laws serve a specific purpose.  The majority of the current Court, however, does not see it that way.  We really have opposing visions of copyright law at work here, and the deference to any Congressional enactment, no matter how one-sided and counter-productive to new creativity, has made the Constitutional language increasingly ineffective.  It is one of those situations where we must hope that, over time, the persuasiveness of the dissent will eventually move it to be the majority view.

I recently read an article from 1890 on “The Evolution of Copyright” by Brander Matthews.  It was written just as the Berne Convention was being formed, and its intent was to commend the new international organization to U.S. lawmakers.  Matthews is clear about how much the Berne approach, modeled on the French “natural rights” view of copyright as it is, differs from the approach taken in England and the U.S.  Clearly he hopes the U.S will change course.  For nearly a hundred years that did not happen, but perhaps now we are seeing, unfortunately in my view, the steady erosion of the instrumentalist view of copyright that has prevailed in the U.S. for some time, and is enshrined in our Constitution, in favor of a natural rights approach that favors those who already own rights even when that favoritism disadvantages those who would create new works.

To slightly change focus, however, I want to end with one note of optimism.  The past couple of weeks has seen, in my opinion, a remarkable awakening of public interest in copyright and access issues, sparked by a couple of unfortunate pieces of legislation.  There has been a lead article about open science in the New York Times, and the 24 hour shut down of Wikipedia in protest over one of these bills – the Stop Online Piracy Act — has made digital copyright a topic of national discussion.  The web site PopVox has set up a central site for comments and advocacy against the other bill, called the Research Works Act and designed to undermine efforts toward public access for publicly-funded research.  With all this attention, it is still possible to hope that public pressure, and especially concern over the functioning of the Internet, will begin to turn our national focus back toward that instrumental and incentive-based view of copyright.