We are starting a new periodic series on the blog to help you understand important copyright law cases In Plain English. This first installment is authored by the Copyright Alliance's legal intern William Ruiz. William is originally from Southern California and is a third-year law student at the Indiana University Maurer School of Law in Bloomington, Indiana.
On January, 18, 2012, the U.S. Supreme Court upheld on a vote of 6-2 a 1994 law that gave copyright protection to millions of foreign-produced books, movies and musical pieces. Passed in order to meet obligations from international trade talks, the law was sought to secure reciprocal protection for American works overseas. The decision was considered a victory for the film and music industries and a defeat for Google, who has undertaken an effort to create a vast online library of public domain works. Justice Ginsburg wrote for the majority. Justices Breyer and Alito dissented. Justice Kagan did not take part in the case. Here’s some background on the decision In Plain English.
In Golan v. Holder, the U.S. Supreme Court upheld a law that restored copyright protection for certain foreign works that were once in the public domain. Public domain works are those works that may be used freely without the permission of the former copyright owner. Typically, works “fall into” the public domain once the term of the protected copyright has expired; for example, the original version of Mary Shelley’s Frankenstein no longer has copyright protection.
The foreign works at issue in Golan v Holder ended up in the public domain because they were published prior to U.S. joining the Berne Convention. The Berne Convention requires signatories to provide the same copyright protections to citizens in other member countries that a country provides to its own citizens. The U.S. government has been a signatory of the Convention since 1988.
To perfect the U.S. implementation of Berne, Congress enacted the Uruguay Round Agreements Act (URAA), which granted copyright protections to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States. The underlying goals of the URAA are to afford U.S. copyright holders the same protections overseas that they are granted domestically. Because U.S. creators and artists sell more works into overseas markets than foreign creators sell here, the reciprocity relationship greatly benefits U.S. creators.
In the context of the Golan case, the URAA simply placed the foreign works in question in the position they would have occupied if the current U.S. copyright regime had been in effect when those works were created and first published.
The plaintiffs in the case consisted of orchestra conductors, educators, performers, publishers, film archivists, and motion picture distributors who made public performance of these works and otherwise used them without prior need for a license. The plaintiffs argued that granting the foreign works copyright protection violated the right to freedom of speech, and provided no plausible incentive to create new works, and therefore does not “promote the Progress of Science and the Useful Arts” as contemplated by the Copyright Clause of the U.S. Constitution.
The Supreme Court disagreed. In its decision the court noted that incentivizing the creation of new works is not the sole way Congress may promote the Progress of Science and Useful Arts. Progress is also promoted by the dissemination of current and future works. In adopting the law, Congress had reason to believe that full compliance with Berne would expand the foreign markets available to U.S. authors and invigorate protection against piracy of U.S. works abroad, thereby benefiting copyright intensive industries stateside and inducing greater investment in the creative process, and therefore, fell within Congress’ authority under the Copyright Clause.
What does this mean for U.S. copyright owners? First, they will continue to benefit from reciprocal treatment in foreign jurisdictions when their works are distributed abroad. However, certain uses of the foreign works at issue in the case will require licenses. Nevertheless, there are still protections in place in current U.S. copyright law for creators to make unlicensed uses of many of these foreign works, including, for instance, any fair uses of the copyrighted works.
Some helpful resources for answers to basic licensing inquiries, may be found on the following websites: Copyright Clearance Center, The American Society of Composer, Authors and Publishers, and Broadcast Music, Inc. The Volunteer Lawyer for the Arts is also an organization that provides legal services and information to members of the arts community.
You can find the full text of the Golan decision here.