Some expression now unfree after Court’s ruling

Friday, January 20, 2012

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.

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