What’s at stake for free speech in copyright case

Wednesday, October 12, 2011

Those were unique moments in oral arguments last week at the U.S. Supreme Court when the names of Jimi Hendrix, John Coltrane, Aaron Copland, Dmitri Shostakovich and Igor Stravinsky were invoked by the justices and attorneys in Golan v. Holder, a highly significant copyright case involving the concept of public domain.

Congress enacted the first Copyright Act in 1790. It allowed the granting of copyright protection for authors and creators. The Founding Fathers believed that the creator of a work should have a monopoly on it for a limited time. After the expiration the material would be placed in the public domain. The public would then have access to the works to reproduce and build upon. Part of the Founders’ reasoning for the Copyright Act was to “promote the progress of knowledge and learning.”

Though many believe “public domain” means “free” use of formerly copyrighted work, there’s more to it than that. In the Golan case, it will be up to the justices to decide whether Congress, in passing the Uruguay Round Agreements Act in 1994, had the authority to provide protection to certain foreign works that were already in the public domain in the United States, and whether by removing these works from the public domain it violated the First Amendment.

In oral arguments, Anthony T. Falzone, the attorney representing Lawrence Golan and others, argued that Congress exceeded its authority by taking these foreign works out of the public domain. His argument is that once a work enters the public domain, it should stay there. By altering the “traditional contours of copyright protection,” Congress significantly restricted speech protected by the First Amendment, Falzone argued.

For years educators, archivists, film distributors and symphony conductors such as Golan have relied on the use of works available in the public domain. Conductors across the United States purchase the sheet music for symphonies and then begin preparing it for their orchestras. Even before the musicians receive the music, Golan says, conductors and others in the orchestra spend hours deciding how they want the music to sound. Should it be played more softly in this section, should the woodwinds come in later in that section? All such notations are added to the original sheet music before it’s distributed to the players. If the orchestra owns the sheet music, then the next time it wants to play the composition all of the notations will be there.

All this changed with the URAA in 1994. Now the conductor generally must rent the music — and pay a licensing fee on top of the rental. The rental period may be for one use of the composition and the sheet music is returned with all notations erased, as publishers tend to require. Many schools and smaller community orchestras can’t afford the costs.

Remember “Peter and the Wolf”? Children on field trips to local symphonies may no longer hear Prokofiev’s symphony designed to teach kids about the various orchestral instruments. It has now been removed from the public domain and unless an orchestra has lots of cash it probably can’t pay the fees. With budget cuts in the school systems, local junior and high school orchestras face the same problem. Ultimately it means the music isn’t played.

So does the URAA violate the First Amendment?

In the First Amendment arena, we talk about government chilling, stifling and creating excessive burdens to speech. Many believe the act is detrimental to the public. Because of economic constraints, Shostakovich isn’t played by smaller local symphonies, films of Alfred Hitchcock and Federico Fellini are sitting unrestored in storage vaults, books by C.S. Lewis and Virginia Woolf aren’t being republished in the United States, artwork by Renoir and Picasso stays on walls on museums, not reproduced in textbooks for us to study. Some works already packaged as CDs or DVDs may remain available, but live performances have decreased.

The government and groups such as ASCAP (American Society of Composers, Authors and Publishers), the Recording Industry Association of America and Houghton Mifflin Harcourt Publishing Co. say the law does not violate the First Amendment. They contend that the government is fulfilling its obligation as member of the Berne Convention to uphold the copyright laws of member countries and thereby combat piracy of intellectual property.

But the Supreme Court has held that music, film, books and art are forms of speech protected by the First Amendment. By removing these foreign works from the public domain in the United States, Congress has burdened the speech rights of artists wanting to use the works as well as the public that wants to receive them. They simply will fade away.

Many will be watching Golan v. Holder very closely.

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