from the sad-things dept
We already wrote about how the Center for the Study of the Public Domain recently
published
their list of things that should have entered the public domain in the
US this year, but didn't. But that's not the only reason to lament.
2012 was particularly painful for the public domain for a separate
reason, as the Center noted in a
lament about the shrinking public domain, with a harsh, but completely justified, condemnation of the ridiculous Supreme Court decision in the
Golan case,
which tragically was decided the very same day as the SOPA/PIPA
protests. Just as the public was telling DC the importance of not
strengthening copyright law, the Supreme Court announced that there was
no problem at all with Congress taking works out of the public domain
and putting them back under copyright by force.
This decision marked a significant departure from the “bedrock
principle” that once works enter the public domain, they remain there,
free for anyone to use and build upon. The law at issue in Golan
– Section 514 of the Uruguay Round Agreements Act – “restored”
copyright to foreign works that had entered the American public domain
for any of three reasons: the author failed to comply with copyright
formalities, the U.S. did not have copyright relations with their
country of origin at the time of publication, or they were sound
recordings fixed before 1972. Golan was different from Eldred because while the works in Eldred were on the brink of entering the public domain, the works at issue in Golan were already in the public domain, and conductors, educators, film archivists and others were legally using them.
In upholding the law, the Golan majority explicitly endorsed
the position that the public has no rights to the public domain. None.
Under U.S. law as declared by the Court in this case, copyright is now
officially “asymmetric.” While those who have copyrights enjoy vested,
legally protected rights, “[a]nyone has free access to the public
domain, but no one, after the copyright term has expired, acquires
ownership rights in the once-protected works.” The majority could not
seem to imagine that the public had rights other than “ownership” over a
free, collective culture. In a dissenting opinion, Justices Breyer and
Alito asked “Does the [Constitution] empower Congress to enact a statute
that withdraws works from the public domain, brings about higher prices
and costs, and in doing so seriously restricts dissemination,
particularly to those who need it for scholarly, educational, or
cultural purposes – all without providing any additional incentive for
the production of new material?” Their answer was “No.”
We were just
discussing
recently if the government taking away copyright could be considered an
illegal "takings" issue under the Constitution. For those who support
such an argument, I can't see how they can, at the same time, then argue
that works seized from the public domain and locked away under
copyright aren't a similar "taking." And, yet, the Supreme Court
basically argued that Congress can take away the public domain at will.
This is horrifying for a variety of reasons:
What are the limits on this decision? Could Congress recall the works of
Shakespeare, Plato, Mozart and Melville from the public domain, and
create new legalized monopolies over them? It is hard to imagine
anything more contrary to the First Amendment – would privatizing
Shakespeare by government decree abridge freedom of speech? – or to the
attitudes of those who penned the Copyright Clause that limits
Congress’s power to create new exclusive rights. Yet if one reads Golan,
one searches in vain for any limiting principle on Congress’s actions.
In this decision, Justice Ginsburg’s majority opinion effectively denies
the public domain any meaningful Constitutional protection. Under the
U.S. Constitution, says this case, the public domain is “public” only by
sufferance. It may be privatized at any moment, at the whim of the
Congress and without violating the Bill of Rights.
In our opinion as legal scholars, this decision is shockingly cavalier
in its dismissal of the importance of the public domain to free speech
and to the progress of science and culture. It is also, again in our
opinion, unsupported by the text, structure and history of the
Constitution. Indeed, it seems flatly contrary to the dictates of the
First Amendment and the limitations imposed by the Copyright Clause. Yet
its message, however lamentable, is clear. If the public domain is to
be protected in the United States, it is not going to be through the
Constitution, but through reasoned argument, democratic pressure and
legislative action. The public domain will be “public” only so long as
the public demands it.
And this is one of the many reasons why it's important for the public to
understand the importance of this stuff. It's become obvious that
Congress and the Supreme Court don't understand it at all.
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