[This post was authored by Policy Fellow Liz Allen]

FMC recently signed onto an amicus brief (friend of the court) in Golan v. Holder, a case currently pending at the Supreme Court. The case challenges Congress’s implementation of the Uruguay Round Agreements Act (URAA), which removes some works created by foreign authors from the US public domain and restores their copyright protections. Congress enacted this law in order to comply with an international trade agreement called the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

Co-signers include such groups such as the American Music Center, Chorus America, Fractured Atlas, the National Association for Media Arts and Culture, the National Alliance for Musical Theatre, and the National Performance Network, as well as academics and individual creators like Jonathan Lethem and Michael Chabon.

To understand our brief, it’s helpful to know a few basic facts of the case.

In the past, the US required all authors to comply with some formalities (such as registering their works and including copyright statements on physical copies) in order to obtain copyright protection. Many foreign authors didn’t comply with the formalities, and therefore didn’t receive protection in the US. These works fell into the public domain, allowing anyone to use them and base new works upon them. When the US signed onto TRIPS, however, one provision required the US to restore copyright protection in existing foreign works — even those works that were already in the public domain. Congress complied by enacting the URAA.

There’s no way of knowing exactly how many creations were affected, but it’s possible they number in the millions. This body of work includes symphonies by Prokofiev, Stravinsky, and Shostakovich; books by C.S. Lewis, H.G. Wells, and Virginia Woolf; films by Federico Fellini and Alfred Hitchcock; and artwork by Picasso and M.C. Escher.

In Golan v. Holder, numerous parties (including orchestra conductors, educators, performers, publishers, film archivists and motion picture distributors) challenged the provisions of the URAA that remove works from the public domain. They argue that Section 514 of the URAA is unconstitutional because it violates their First Amendment rights of free expression. When the foreign works were in the public domain, these parties were free to use them in performances, incorporate them into their own projects, or use them as building blocks to create new works. When the URAA removed the works from the public domain, these “reliance parties” (authors who relied on those works being free to use) were left with few options. Basically, they could either refrain from using the foreign works or pay for the use they originally believed would be free.

The issue that really interests FMC is the importance of the public domain for musicians and other creators and performers who draw upon the public domain for their own creative expression. If the Supreme Court decides that Congress can take works out of the public domain, it could set a precedent for future attempts to further deplete it. With this in mind, FMC joined this brief, which describes why the public domain is important to artists of all stripes.

We are hugely supportive of the rights artists, of authors, performers, publishers, and of course, musicians. Often this includes meaningful protections for creators, backed up by US copyright law. But we also understand that the public domain plays an integral role in artists’ ability to be exposed to culture and in the creation of new works.

Our brief articulates the many reasons the public domain is “essential to American creativity, innovation, and democratic participation.” It also points out that the public domain itself is a result of a bargain inherent in the Copyright Act between the public and copyright holders. Essentially, copyright owners are granted rights to exploit their works (requiring the public to pay for access), but only for a limited time. After the term of copyright expires, the public gets to enjoy those works free of cost. This benefit to the public doesn’t just mean that people get to enjoy the works for free, but it also means that later musicians, authors, and other artists can then build upon those works and create new ones.

Finally, the brief notes the importance of preserving stability in the public domain. If the Supreme Court allows Congress to pass laws removing works, there could be implications for all types of parties. Uncertainty in this part of copyright law could stifle innovation and investment in new business models, many of which use new forms of creativity as their backbone. The same is true for creators and performers who use these works in new forms of expression.

FMC hopes that the Supreme Court will keep these important interests in mind while making its final decision in Golan v. Holder.