The "traditional contours" of copyright

The Supreme Court on Monday granted certiorari , which is the technical language for agreeing to hear a case, in Golan v. Holder, a copyright case with potentially significant implications for the public domain in the U.S.  I wrote about this case back in 2009, when it was first decided by a federal District Court in Colorado.  The decision I approved of at that time was subsequently reversed by the 10th Circuit Court of Appeals, and now the Supreme Court has agreed to decided the issue.

This post from the Patently O blog reports on the grant of “cert” and does a pretty good job of explaining the issue.  Basically the problem is that a law passed to reconcile U.S. copyright law with the international treaties that we agreed to in 1988 and after had the effect of removing some works from the public domain.  This had virtually never happened before; until the Uruguay Round Agreements Act (URAA) of 1994, things that were in the public domain stayed there, and users could safely depend on their availability for use and reuse.  For a subset of materials, however, the URAA changed the rules pretty dramatically and, according to the petitioners, in a way that conflicts with the basic protection of free speech found in the US Constitution.  The briefs for the case, including the amicus brief filed by the Stanford Fair Use Center and the brief in opposition to cert written by the Solicitor General’s office back when Elaine Kagan was SG (which explains why she took no part in the cert decision) can be found here.

The PatentlyO post compares this case to the earlier one in which the Supreme Court decided that the 20 year extension of copyright’s term in the US was constitutional.  I think the relationship between these two cases needs to be explicated a bit.  The case about the copyright term, Eldred v. Ashcroft, was decided, at least in part, on the grounds that the Copyright Term Extension Act did not alter “the traditional contours” of copyright.  When the courts face a challenge to a law based on Constitutional grounds, one of the major decisions they make is what “level of scrutiny” to apply to that law.  For example, a law that tried to regulate speech based on its content — forbidding expressions of support for the Tea Party, for example — would get the strictest scrutiny.  No law has ever survived this kind of analysis in the Supreme Court.  In Eldred, the Court decided that copyright law per se was not in conflict with free speech principles and so an extension of its term by a finite number of years would be evaluated on the basis of an ordinary level of scrutiny.  The Court said, however, that it would apply much more rigor if it were assessing a law that altered the “traditional contours” of copyright.

In the URAA, plaintiffs believe they have found such a law, since re-protecting works that had previously been in the public domain seems like a dramatic break with the past for US copyright law.  So this case relies on the Eldred decision precisely because the plaintiffs believe that it presents the situation the Court worried about, but did not find, in Eldred.  Where the CTEA was found constitutional in Eldred, the plaintiffs hope the Court will apply the same standard to find the URAA unconstitutional in Golan.

The URAA basically said that if a foreign work had risen into the public domain in the US only because of its failure to comply with the formalities that the US used to impose for obtaining copyright protection — notice and registration — it would be restored to protection as long as it was still protected in its country of origin.  As a principle this sounds fair (if you accept that formalities should have been abolished), but in practice it has had some serious consequences for those who had been using those putative public domain works.  Lawrence Golan, for example, is a symphony conductor who has suddenly found that he must get permission to perform the works of Igor Stravinsky when, in the past, he did not have that added expense.  The Court is asked to decide whether this is such a radical change to U.S. copyright law that it conflicts with the First Amendment.

One of the best resources I know of to understand the difficulties that these “restored” copyrights can create is this article by Peter Hirtle of Cornell University, which shows how difficult it can be to determine for sure whether a work really is in the public domain in the US because of the possibility of restoration.  Often, potential users are simply unable to find the full information they would need to decide for sure if they can use or reuse a specific work.  Presumably the Supreme Court will tell us, sometime next year, whether this uncertainty has changed the copyright game so radically that it now threatens our constitutional commitment to free speech.