Some expression now unfree after Court’s ruling
The Supreme Court just put a price tag on some formerly free speech.
In a 6-2 vote on Jan. 18, the Court upheld a 1994 law that extended copyright protection to foreign films, books, paintings and other art that had previously been in the public domain and available free to U.S. residents.
The justices concluded that providing protection for foreign works created between 1923 and 1989 that had previously been ineligible for protection under American copyright was simply a matter of complying with an international convention. Essentially, the Court concluded that Congress had the right to change the status of these works to make them consistent with an international agreement.
As evidenced by the furor this week over Stop Online Piracy Act and the Protect Intellectual Property Act, copyright remains a cutting-edge topic. But it’s important to remember that its principles are embedded firmly in the U.S. Constitution. The first copyright law was passed in 1790, and a year later the Bill of Rights was ratified, guaranteeing all Americans free speech.
It’s this latter guarantee that was undermined by the Supreme Court’s decision.
Let’s be clear about what free speech is. In addition to being an individual’s personal expression, it includes the performance of a work that someone else has created. It is an exercise of free speech to stage a play or conduct a symphony. It’s also free speech when you mash up multiple songs into a new work.
With its ruling in Golan v. Holder, the Supreme Court has now upheld a law that in effect takes millions of works out of the public domain. If Americans choose to use, present or republish some of these works to express themselves, they may well have to pay a licensing fee. This includes books by Virginia Woolf, symphonies by Igor Stravinsky and movies by Alfred Hitchcock.
The odd thing — and justices Stephen Breyer and Samuel Alito noted this in dissent — is that the Court’s ruling upholding copyright for foreign works doesn’t encourage creativity, which is the reason copyright was established more than two centuries ago.
“The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works,” Breyer wrote.
The Supreme Court has extended copyright protection in the past, but never to works that were already in the public domain. The upshot is that the public loses, free speech suffers and Stravinsky doesn’t need the money.
Tags: copyright, intellectual property, public domain, Supreme Court
2 Responses to “Some expression now unfree after Court’s ruling”
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Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.
Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online.
John Seigenthaler founded the First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.
Tiffany Villager is director/First Amendment studies at the First Amendment Center, which she joined in 1993. She also served as the center’s research manager and research coordinator, and developed the center’s library.
[...] Paulson, the President of the First Amendment Center, took a look at the decision. In his analysis, he writes: Let’s be clear about what free speech is. In addition to being an individual’s [...]
http://www.firstamendmentcenter.org/author/kenpaulson
[…BS…] Paulson, the President of the First Amendment Center, took a look at the decision. In his analysis, he writes: Let’s be clear about what free speech is. In addition to being an individual’s personal expression, it includes the performance of a work that someone else has created. It is an exercise of free speech to stage a play or conduct a symphony. It’s also free speech when you mash up multiple songs into a new work. […more BS…]
Ken Paulson Esq above is a presumptuous old man with a mission that is moronic and entirely idiotic. Ken Paulson Esq is attempting to expand “Free Speech” rights by expanding previously undefined but historically understood terms. The phrase being asserted to mean more was used in the First Amendment as follows.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Is Ken Paulson Esq entirely clueless regarding slander, libel, and defamation in addition to privacy by ignoring both personal privacy and privacy required by law? “Free Speech” is utterly missing from the laws in United States and thus “freedom of speech” is already expanded by Ken Paulson Esq. “Freedom” is an utterly mitigated term that obviously implies existing limitations or an assumed characterization. Complete freedom versus allowable freedom and limited freedom. Ken Paulson Esq is quick to abandon the common English text of the statute and imply the utterly false existence of a fundamental “free speech” right recognized in law. His misinterpretation is so obvious that there are only two links from Wikipedia Foundation “Free Speech” entry to the “First Amendment” entry.
Ken Paulson Esq is the President of the First Amendment Center and not of the Free Speech Center. Perhaps a name change is in order? Wait -Ken Paulson Esq is delighted when citizens are mislead into believing the is an unqualified right to “free speech” in United States Law.
There is no “right” to publicly perform a creative work someone else created. This false allegation is utterly ignorant of historic common law and the Berne Convention. It is an improper exercise of speech to stage a play or conduct a symphony without permission from the works creator. It’s is generally ignoring the rights of musicians when you mash up multiple songs into a new work without written permission.
This can be found at my open.salon.com/BLOG/curtisneeley BLOG so that Ken Paulson Esq might be educated regarding the errors of his First amendment Center attempting to rewrite the First Amendment and violate the Berne Compact. Searching for Ken Paulson Esq will lead even the confused old guy or his First Amendment Center friends here.
Sincerely,
Curtis J Neeley Jr., MFA
Neeley v NameMedia Inc, et al
(5:09-cv-05151)(11-2558)
Appeal fully briefed and before the Eighth Circuit.
APPELLANT BRIEF…………..………………….PDF
(56 pages)
APPELLEE BRIEF by NameMedia……PDF
(22 pages)
APPELLEE BRIEF by Google…………………….PDF
(20 pages)
APPELLANT REPLY BRIEF…………..PDF
(16 pages)
The obvious result is FCC regulation of wire communications; -
even when called “the Internet” for disguise!