Copyright blogs have been very active over a decision handed down in Golan v. Gonzalez by the Tenth Circuit Court of Appeals on September 4th. This is the most recent in a line of challenges to the Copyright Term Extension Act of 1998 (CTEA) that added twenty years to the duration of copyrights in the US. The argument that this was unconstitutional because the constitution only allows patents and copyrights for “limited times” has failed several times in federal court, and it failed here as well. But a new twist is introduced in this case that promises a great deal of debate.
See these blog posts by William Patry, Jack Balkin, Larry Lessig and Carlos Ovalle. Balkin’s post, which suggests some pitfalls to the First Amendment challenge described below and suggests that it is really the DMCA that should be subject to such a challenge, is especially worth reading.
In addition to challenging the CTEA, plaintiffs in this case also challenged the law that implemented the “Uruguay Round” of trade agreements in the US. This round of negotiations led to a revolutionary marriage of trade regulation and international intellectual property law, and it finally brought the US into the Berne Convention, a hundred-year-old international agreement on copyright. In order to implement that agreement in the US, Congress passed several major amendments to make our copyright law conform to the international minimum standards.
One change, in 1989, was to entirely eliminate “formalities” for copyright, the need to put a copyright symbol on a work or to register it before it was protected by copyright. In essence, copyright protection became automatic. The other Berne convention countries had done away with formalities long ago, so there were works published in those countries that were protected by copyright at home but were in the public domain in the US because they had not complied with our formal requirements. These foreign works were restored to copyright protection by the 1994 implementation act challenged in this case.
In 2003, the Supreme Court ruled, in Eldred v. Ashcroft, that the CTEA was not unconstitutional. They also said, however, that First Amendment free speech rights might be implicated by a copyright law revision if that revision “altered the traditional contours of copyright.” That phrase is spawning a great deal of litigation, and in Golan v. Gonzalez the Tenth Circuit held that the restoration of copyright in those foreign works that had been in the public domain was an alteration of these traditional contours. On that basis, it sent the case back to the district court to decide if free speech rights really were implicated here, requiring that the government meet a much higher standard in defending the law.
I have to agree with William Patry’s blog post that there is something very strange about this decision. The “remand” to the district court is essentially to decide what standard of review to apply to the case. But the Court of Appeals has already decided, earlier in the opinion, that Congress was acting within its constitutional authority when it passed the Uruguary implementation act. The Tenth Circuit seems to say that Congress had the authority to restore these copyrights under the constitutional authority granted in the patent and copyright clause but that the action may still be challenged, based on a higher standard of review, under the First Amendment. Since the Supreme Court has already said that the First Amendment safeguards built into copyright law — notably the idea/expression dichotomy and fair use — are sufficient to reconcile the grant of copyright authority with the free speech clause, it is hard to see where this argument can go. The Tenth Circuit explicitly disagreed with the Supremes on this point, but it seems unlikely that that alone will change the high court’s mind. Besides, it seems unlikely to me that the district court will actually apply the higher level of review to this law, since to do so it would have to find that the copyright restoration act was a”content-based” restriction on free speech, which it clearly is not.
All of this, to my mind, obscures the real point about the restoration of foreign copyrights. The significant alteration of the traditional contours of copyright occurred back in 1989 when the US dropped formalities. Suddenly, copyright protection became the default position, whereas previously authors could decide to protect their work, by complying with the formalities, or place it in the public domain. Once we made the decision to abandon formalities, the public domain was severely restricted. Restoring a small number of foreign copyrights so that non-US authors would not continue to be penalized by rules we had abandoned for ourselves seems a reasonable act of equity. We should be having a much broader debate about the “traditional contours of copyright law,” and the importance of the public domain to scholarship, creativity and innovation. That debate will not be resolved by the courts; it must take place in public and in Congress.