[A2k] US: Selling public property?

Manon Ress manon.ress at keionline.org
Tue Mar 22 04:52:29 PDT 2011


Supreme Court arguments often concern not just the narrow issue in the
case but also the implications of a ruling. You sometimes catch the
justices squinting, trying to see over the legal horizon.

Nine years ago, for instance, the court heard arguments in a case
about whether Congress was free to add 20 years of copyright
protection for works that had not yet entered the public domain.

Several justices asked about a different and even tougher question:
Was Congress also free to restore copyright protection to works that
had entered the public domain and become public property?

“If Congress tomorrow wants to give a copyright to a publisher solely
for the purpose of publishing and disseminating Ben Jonson,
Shakespeare, it can do it?” Justice Stephen G. Breyer asked a lawyer
for the government.

“It may,” said the lawyer, Theodore B. Olson, who was United States
solicitor general at the time. But he did not sound too sure.

A little later, Justice David H. Souter pressed Mr. Olson on the same
point and elicited the concession that restoring a copyright presented
a much harder case.

“There is a bright line there” for “something that has already gone
into the public domain,” Mr. Olson said.

Justice Souter seemed satisfied. “If you don’t throw out a line
there,” he said, “then Ben Jonson certainly gets recopyrighted.”

The court ended up ruling, by a 7-to-2 vote in 2003 in Eldred v.
Ashcroft, that extensions for works still under copyright are allowed.

This month, the court agreed to hear a case on the question Justices
Breyer and Souter anticipated, one that will test whether there is
indeed a constitutional line Congress may not cross when it comes to
the public domain.

The new case asks whether Congress acted constitutionally in 1994 by
restoring copyrights in foreign works that had belonged to the public,
including films by Alfred Hitchcock and Federico Fellini, books by C.
S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky
and paintings by Picasso, including “Guernica.”

“The works that qualify for copyright restoration probably number in
the millions,” Marybeth Peters, the United States register of
copyrights, said in 1996.

The plaintiffs in the new case, Golan v. Holder, are orchestra
conductors, teachers and film archivists who say they had relied for
years on the free availability of works in the public domain that they
had performed, adapted and distributed.

The 1994 law, they told the justices, “did something unprecedented in
the history of American intellectual property law and constitutionally

Lawrence Golan, the lead plaintiff, teaches conducting at the
University of Denver and is the music director and conductor of the
Yakima Symphony Orchestra in Washington State. He said the 1994 law
made it very difficult for smaller orchestras to play some seminal
20th-century works that had once been a standard part of their

“Once you own a Beethoven symphony, you own it till it falls apart,”
he said. “That used to be the case with Stravinsky, Shostakovich and
Prokofiev. Now an orchestra that wants to play, say, Shostakovich’s
Fifth has to rent it for $800 for one performance.”

He said he had no quarrel with providing financial incentives to
people who create art. “Obviously, current composers need to be
encouraged to create their works, and they should be getting
royalties,” Mr. Golan said.

But he said withdrawing works from the public domain did great harm to
the cultural life of small communities for no good reason.

That analysis, Mr. Golan’s lawyers say, is consistent with the
constitutional balance between property and speech. The Constitution
authorizes Congress “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.”

In other words, said Anthony T. Falzone of the Stanford Law School
Center for Internet and Society, which represents the plaintiffs, the
Constitution meant to create incentives, not monopolies. “The whole
point wasn’t to protect stuff,” he said. “It was to encourage people
to make stuff, and everybody’s lost sight of that.”

The government counters that nothing in the 1994 law did damage to the
constitutional structure or to free speech rights.

The government adds that the 1994 law applies to foreign works
“previously ineligible for protection or whose authors were unfamiliar
with the technicalities of United States law.” Every work brought back
into copyright protection, the government says, “expires on the same
day as if the work had been protected since its creation.”

The federal appeals court in Denver, in upholding the law, said there
were important First Amendment interests at stake on both sides. It
concluded that there was reason to think that American authors and
artists would be better off abroad if foreign authors and artists
received expanded copyright protection here.

That economic calculation rankled Mr. Falzone. “You’re selling public
property,” he said. “Congress literally took the public’s property and
handed it over to foreign copyright owners.”

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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