Personal Right to Copyright Protection Under the Constitution

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While the current Supreme Court term will undoubtedly be remembered for the recent ruling on the Affordable Care Act, the court also issued an important ruling on Congress’ ability to reissue copyright protections for works currently in the public domain. The case, Golan v. Holder (132 S.Ct. 873), was decided in January and offers copyrights to previously unprotected foreign works. The dissent expressed concerns about the use of public domain works online and the spread of public domain knowledge across the world.

The Supreme Court’s ruling comes as a result of efforts to synchronize U.S. copyright law with a variety of international laws and agreements. In 1994, the U.S. passed a federal law to implement a global trade agreement, the Uruguay Round Agreement. The court ruled 6-2 against a constitutional challenge of the law with Justice Elena Kagan not taking part. The challenge was based largely on an argument that placing public domain works back under protection violates the first amendment free-speech rights of individuals who used the work when it was unprotected in the public domain.

The public domain includes works like books, songs, movies, and art that are no longer protected under intellectual property laws and are available for use without permission. Generally, works enter the public domain when their protection expires, but sometimes an author will place works in the public domain to make them available for use by the public. There are a variety of rules for public domain status.

The majority opinion, written by Justice Ruth Bader Ginsburg, held that there is no personal right to use, copy, or perform a work without copyright protection under the Constitution. Rejecting the challengers’ argument, the court stated that only the creator or author holds legal rights pertaining to copyrighted materials. Since there is no right to access or use materials that have lost copyright protection, there is no right to protest if any protections are restored. If a copyright is restored, the work can still be used, the court argued, but like any other copyrighted material, any use must be approved by the copyright holder.

Alternatively, the challengers argued that the Copyright Clause did not give Congress the authority to restore copyright protections to works that have entered the public domain. The court rejected this argument and stated that nothing in the Copyright Clause itself or the body of U.S. copyright law supported this reading of the Copyright Clause.

The majority also noted that Congress decided to adopt the law in question to bring U.S. copyright policies into harmony with foreign ones and, as a result, obtain increased protection for U.S. copyright holders in other countries. The majority stressed that the law merely offered foreign creators the same protections for their hard work as U.S. ones.  The 1994 law guarantees protection under U.S. copyright laws to works with foreign protection for the duration of their protection in their home country. Since these works were unprotected in the U.S., they were previously available for use or copy for free. While the law allowed for a grace period, it discontinued any free use and instated protection for the foreign works. While the law would now require payment for the performance of some previously unprotected works, the court argued that many other protected works requiring payment are still routinely performed without difficulty. In addition, the majority pointed out that the previously unprotected works are not given any recompense for their past use. The copyright holders are only afforded protection against future use.

The majority opinion relied on a previous opinion also written by Justice Ginsburg, Eldred v. Ashcroft (123 S. Ct. 769). In that case, the court upheld Congress’ power to lengthen the protection of copyrights that are already in effect. The majority in Golan extended Congress’ power further by holding Congress could extend copyright protection to works that never received protection; however, they insisted that the same constitutional principles applied in both cases.

The dissenting opinion, written by Justice Stephen G. Breyer and joined by Justice Samuel A. Alito, Jr., focused on the unorthodox nature of the decision by Congress to remove work from the public domain. Although reinstating protections is not unprecedented, the dissent believed that this was reserved for rare situations. The dissent also argued that the 1994 law did not satisfy the Copyright Clause since it provided protection to work created previously and failed to encourage any new work. Justice Breyer expressed concerns that the 1994 law frustrated efforts to make a variety of public domain material available online. The law disrupts the spread of knowledge across the world and does not provide any offsetting benefit by encouraging the production of any new work. The dissent also contended that the 1994 law unfairly requires performers to hunt down the copyright holder for old works that had uncertain or unknown ownership. Finding the owners for such orphaned works, the dissent agued, is a difficult task. Justice Breyer criticized the 1994 law as removing much of the freedom available through the public domain without offering any countervailing benefit to the deprived artists and creators.

In her majority opinion, Justice Ginsberg rejected the dissent’s orphaned works argument. While this is certainly a difficulty, the majority did not believe it was fatal to the 1994 law. The hardship in finding the copyright holder should be left to Congress’ consideration. In addition, the law allowed for parties who were using the public domain works to continue their use until or unless they received a complaint from the copyright holder.

Overall, the majority claims that the 1994 law only extends existing copyright protections to foreign artists, writers, and creators. The treaty, implemented by the law, also ensures robust protection for U.S. copyright holders abroad. The dissent, however, raises legitimate concerns about the precedent that is set by the decision, especially in light of recent copyright controversies like SOPA.