[A2k] Tamlin H. Bason: Following Golan Arguments, Experts Define Public Domain, ‘Limited Times'

Manon Ress manon.ress at keionline.org
Wed Oct 12 12:22:47 PDT 2011

Tamlin H. Bason:  Following Golan Arguments, Experts Define Public
Domain, ‘Limited Times'
Wednesday, October 12, 2011
from Patent, Trademark & Copyright Law Daily™
By Tamlin H. Bason


Just hours after fielding questions from eight Supreme Court justices
over the merits of his client's arguments, Anthony Falzone, counsel
for the petitioners in a case testing the constitutionality of a law
that granted copyright protection to certain foreign works that had
previously been in the public domain, sparred with other panelists
over what precisely is the public domain.

Although seemingly simple, the answer to that question, which was
asked by Justice Anthony M. Kennedy during oral arguments before the
U.S. Supreme Court on Oct. 5 (Golan v. Holder, U.S., No. 10-545,
argued 10/5/11), appears to be both difficult, and subject to
differing interpretations.

The answer is also an important one, and was hotly debated during the
post-argument panel discussion which was held at the American
University Washington College of Law and co-sponsored by the school's
Program on Information Justice and Intellectual Property.

To Falzone, the public domain is hallowed ground. The public domain
"is the fulfillment of the promise that the Copyright Clause" will
promote arts and sciences, Falzone said.

Without the public domain, the requirement that the Copyright Clause
be used "[t]o promote the progress of science and useful arts" would
be meaningless, Falzone argued. The progress is achieved by allowing
works to enter the public domain after “limited times” of protection
that are established by Congress, Falzone said. The “limited time”
language thus becomes essential, Falzone said.

"Limited times is the mechanism that ensures that copyrights will in
fact promote progress," Falzone said. "It tells Congress that it has
to pick a date that marks the end of protection where we all know that
we can use [a work] freely," Falzone said. "We can distribute it, we
can adapt it, we can build on it. That is the point at which everybody
is free to put these works to their highest possible service in
furtherance of the values of the preamble—the promotion and progress"
of arts and sciences, he said.

Accordingly, once a work enters the public domain after a limited
time—and Falzone argued that zero was the operative limited time for
the works that became protected under the Copyright Act's Section
disputed 514—it cannot later be yanked from the public domain and
protected by copyright laws.

Once a work is in the public domain, “it's ours, and that is why it
can't be subject to revocation because we don't know whether it is
ours or not if Congress is always free to change its mind,” Falzone

"The public domain that [Falzone] recognizes is not the public domain
that I recognize," David Carson, general counsel for the Copyright
Office said. Carson agreed with Falzone that the public domain was
"rightly the destination of every work." However, Carson said that the
works in the public domain have no special constitutional protection
other than the First Amendment protections that were properly weighed
by the 10th Circuit when it upheld the statute, Golan v. Holder, 609
F.3d 1076, 95 USPQ2d 1466 (10th Cir. 2010) (119 PTD, 6/23/10).

Limited times is the mechanism that insures that copyrights will in
fact promote progress.

Anthony Falzone, counsel for petitioners.

"The public domain is simply the absence of copyright protection: that
which is not protected by copyright is in the public domain," Carson
said. "I am aware of no case law that says that it is a matter of
constitutional law that that cannot change," Carson said.

Carson pointed out Golan was in fact the first case to address the
very issue. "We will have an answer in a few months," he said.
What Is a 'Limited Time?'

If the public domain is not some constitutionally protected safe
haven—and Carson argued that it was not—then the controlling question
in Golan becomes whether Congress had extended copyright protection
"for a limited time."

Michael Carroll, the executive director of the university's PJIP
program, authored two amicus briefs in opposition to the statute. He
wondered what sort of precedent might be established if Congress is
permitted to pull works out of the public domain.

Caroll asked: "Will a ruling in favor of upholding the statute give
Congress carte blanche to grant copyright in the Bible or in

"We probably all agree that if Congress were to extend the term of
copyright to life plus 500 then we would all be appalled and would
hope and pray that we would find something in the constitution to
prevent it," Carson said. "On the other hand, if you read the
Eldredcase, I am not sure where we would find it."

Carson was referencing Eldred v. Ashcroft, 535 U.S. 185, 65 USPQ2d
1225 (2003) (11 PTD, 01/16/03), which upheld as constitutional under
the limited times restriction the Sonny Bono Copyright Term Extension
Act of 1998.

Falzone, however, argued that Eldredwas irrelevant to this case
because in Eldred the time extension was just that: an "extension" of
a time period that had yet to run its course. In this case, Congress
did not extend, but rather revived copyrights for works whose
copyright had already lapsed, Falzone said.

Falzone's argument is grounded in his assertion that Congress did in
fact set a limited time for the works in question. Falzone argued that
when Congress enacted the Berne Convention Implementation Act of 1988,
Pub. L. No. 100-568, 102 Stat. 2853, 2860, it made an affirmative
determination to only recognize those foreign copyrights covering
works that were not already in the public domain under U.S. law. In
doing so, Falzone said that Congress applied a "zero term" to all
other foreign works—including those at issue in Golan. The zero term
was a "limited time" in accordance with the Copyright Clause.

"The real problem with the limited time theory that the government
advances is that there really is no limit," Falzone said. He said that
the government's power to extend copyright protection, as recognized
in Eldred, coupled with the government's asserted power to reach back
and grant copyright protection to works in the public domain,
effectively eviscerates the “limited times” language of the Copyright

If that is the case, Falzone wondered “Why put the language in the
Constitution? What does ‘limited times' stop Congress from doing? I
assume they didn't put it in there for no reason whatsoever,” Falzone

"It may be that it stops Congress from giving perpetual copyright,"
Carson said. "It is conceivable that it does nothing more than that. I
hope that that is not true, but I don't know where you draw the line
short of that."

Christopher Mohrof Meyer, Klipper & Mohr, Washington, D.C., said the
Shakespeare hypothetical "is a fascinating law school question, but it
really isn't anything more than that."

Mohr, who authored an amici brief for the American Society of
Composers, Authors and Publishers in support of the statute, pointed
out that Shakespeare was not an issue. Rather, Mohr said at issue here
are works that never received any protection that were granted
copyright in order for the U.S. to comply with its treaty obligations.
Against this backdrop, the court will likely conclude that Congress'
actions were constitutional, Mohr said.
Statute Likely to Be Upheld?

Roger E. Schechter, a law professor at George Washington University,
predicted that the court would rely on Eldred to uphold the
constitutionality of the statute.

"Given the deference the court showed to congressional judgments in
the Eldred case, it seems unlikely the court will overturn the statute
at issue in Golan," Schechter told BNA. "They will likely find that
the provisions of the law that allow 'reliance parties' to continue to
make some limited use of materials with restored copyrights represent
a sufficient accommodation of First Amendment interests. This seems
especially likely because a contrary finding would throw our
international copyright relations into considerable disarray."

Neil Smith of Ropers Majeski Kohn & Bentley, San Francisco, noted how
Justice Ruth J. Bader Ginsburg seemed to reject Falzone's argument
that Congress had set a "zero" term limit. Instead, Justice Ginsburg
suggested that the works in issue simply never got any protection.

"Certainly the distinction between clearly expired and restored
copyrights, versus as Justice Ginsburg notes, situations like here
where Congress never gave them copyrights, is major, and likely
determinative of votes," Smith told BNA.

By Tamlin H. Bason

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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