High court takes First Amendment copyright case

Wednesday, March 9, 2011

The U.S. Supreme Court has agreed to hear a case that gives it a chance to clarify the relationship between copyright law and the First Amendment.

The case, Golan v. Holder, features constitutional challenges to a federal copyright law that removed some foreign works from the public domain.

As a result of that 1994 law, orchestra conductors such as lead petitioner Lawrence Golan of Denver can't use some foreign works without paying high licensing fees. “Never before has Congress taken a broad swath of works that were long part of the Public Domain and placed them under copyright protection,” the petitioners wrote in asking the Court to take their case.

In 2001, Golan and other conductors, along with educators, performers, publishers and movie distributors, sued in federal court claiming the law had harmed them. Removing thousands of foreign works from the public domain in the United States, they argue, inhibits their artistic expression. According to the petitioners, works that now require licensing fees include “symphonies by Prokofiev, Stravinsky and Shostakovich; books by C.S. Lewis, Virginia Woolf and H.G. Wells; films by Federico Fellini, Alfred Hitchcock and Jean Renoir; and artwork by M.C. Escher and Picasso.”

In 1994, Congress passed something called the Uruguay Round Agreements Act to bring the United States into compliance with  international copyright treaties. Congress passed URAA and joined the treaty, supporters say, to protect the interests of American copyright holders abroad. But opponents counter that the law impeded creators in the United States, who no longer had free access to some materials in the public domain. Both sides agree the net effect of URAA was that the United States restored copyright protection to some foreign works that had fallen into the public domain.

Two issues are identified in the legal papers before the Supreme Court.

First is whether, by removing materials from the public domain, Congress exceeded its powers under the copyright clause. The clause gives Congress the power “to 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.”

Second is the First Amendment question. Golan and the other petitioners contend that the law violates the First Amendment because it deprives them of access to expressive works and infringes on their ability to produce their own works.

Traditionally, copyright laws have been immune from First Amendment challenges. The rationale has been that copyright already has built-in free-speech safeguards. These include “fair use,” or the right of others to present excerpts of creators' works, and the principle that ideas cannot be copyrighted, only the ways in which creators express them.

The last time the Supreme Court addressed the balance between copyright and the First Amendment, the First Amendment didn’t fare very well. In its 2003 decision Eldred v. Ashcroft, the Court upheld a federal law — the Copyright Term Extension Act — that added 20 years to the life of many copyrights. The Court found that no further First Amendment scrutiny was required because the law did not “alter the traditional contours of copyright law.”

Golan and the other petitioners have argued that by removing material from the public domain, URAA does alter the traditional contours of copyright protection. The 10th U.S. Circuit Court of Appeals agreed in its initial decision in Golan v. Gonzalez (2007) that First Amendment review would have to be applied in the case.

However, the next time the case made it to the 10th Circuit, that court ruled in Golan v. Holder (June 2010) that the law did not violate the First Amendment, because the government had a substantial interest in protecting American copyright owners' interests overseas.

According to the 10th Circuit, the U.S. needed to strengthen protection for foreign interests in order to obtain more protections for American copyright owners. The 10th Circuit said a large measure of deference was due Congress, which had “crafted a nuanced statute.”

The U.S. Supreme Court in Golan v. Holder will have an opportunity to explain clearly what it meant in Eldred v. Ashcroft about when a law violates “the traditional contours of copyright law.” The case has the potential to be quite significant.

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