[This post is by FMC Supreme Court Correspondent, Chhaya Kapadia]

Last week, the Supreme Court handed down on a ruling on Golan v. Holder, a case that ultimately pitted an international trade agreement against the rights of those who use works in the public domain.

The case is pretty complicated, but here’s a recap that’s as brief as we could make it:

For more than a hundred years, many foreign authors (including composers and filmmakers) unintentionally had works in the U.S. public domain simply because they hadn’t filed for copyright protection in our system. (This was back when you had to fill out paperwork to receive copyright protection.) In 1994, Congress decided to honor the Berne Convention’s principle of “reciprocal” protection between nations, placing many of those works back under copyright via the Uruguay Round Agreement. Subsequently, many orchestra conductors, educators, performers, film archivists and motion picture distributors found themselves caught in a conundrum, as they’d been performing and using material that had been in the public domain and now suddenly wasn’t… so, they sued. The result is the Golan v. Holder case, in which these “reliance parties” argued that Congress didn’t have the authority to remove works from the public domain.

The Supreme Court of the United States decided last week in a 6-2 decision that Congress indeed has the authority to remove works from the public domain. The Golan v. Holder decision is interesting for a few reasons. Like many things in the law, there are upsides and downsides:

• Copyright owners — both in the U.S. and abroad — may ultimately benefit from this ruling. Foreign rightsholders will gain copyright protection in the US and domestic rightsholders may be treated more fairly by foreign copyright regimes.
    
• Another benefit is that future attempts at blanket licensing schemes or voluntary global registries might be made simpler through greater harmonization of copyright law across borders. Fewer sets of rules = fewer negotiations.
    
• But it’s not all unicorns and daisies. The public domain loses countless works (literally, countless since there’s no way to count them). This 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. All these works will now need to be licensed if they are to be performed, printed, sampled or remixed. The Golan v. Holder ruling changes the economics for people who present these works to audiences, the public who gets to enjoy them for free as well as the musicians, authors and other artists who build upon these works to create new ones.

In the long-term, the value of the public domain gets short shrift. Justice Ruth Bader Ginsburg writes for the majority opinion: “Rights typically vest at the outset of copyright protection, in an author or rightholder. … Once the term of protection ends, the works do not re-vest in any rightholder. Instead, the works simply lapse into the public domain. … Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.” Our preferred view of the public domain is that everyone owns eligible works, rather than no one. Justice Ginsburg’s opinion seems to place little value on the restraints of the Copyright Clause, which are specific: copyright has a “limited term” and ultimately exists to benefit the public after the period of temporary monopoly has expired.

The dissenting opinion from Justices Stephen G. Breyer and Samuel A. Alito Jr. makes some interesting points, too: “Does the clause 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?… The statute before us does not encourage anyone to produce a single new work.”

In addition to creating precedent that makes it OK to take works out of the public domain, the ruling also brings a degree of uncertainty to the marketplace that may stifle innovation and investment in new business models — many of which use these varied forms of expression as their backbone.

We at FMC are hugely supportive of the rights of authors, performers, publishers and musicians so we can consider this decision in several different ways. Still, the diminishment of the public domain concerns us on behalf of those who help preserve and build upon the historical, artistic and social artifacts of human culture.