Yesterday the Supreme Court heard from both sides in Golan v. Holder, a case that involves a dispute over whether Congress can grant retroactive copyright protection to foreign authors. Congress did so in passing Section 514 of the Uruguay Round Agreements Act, which “restored” copyright protection to foreign authors who were previously ineligible for copyright protection or failed to comply with copyright formalities. Petitioners argue that taking works from the public domain and restoring their copyright protection–examples include works by Shostakovich and Stravinsky–is not authorized by the Progress Clause, which authorizes Congress to set limited terms of copyright protection to promote progress in science and the useful arts. Petitioners further argue that even if Congress had authority to pass the legislation at issue that it infringes upon their First Amendment rights to free expression. Prior to the legislation, all members of the public could perform works that they believed were in the public domain.
As the attorney for the petitioners, Anthony Falzone, presented his argument he faced the most intense questioning from Justice Ginsburg. Justice Ginsburg is the author of the Court’s most analogous precedent, Eldred v. Ashcroft, in which the Court ruled that Congress had the authority to extend existing terms of copyright to, in most cases, the life of the author plus seventy years. Justice Ginsburg that this case involved a situation in which whole categories of work were deemed ineligible for a term of protection and now the U.S. was granting them protection in order to meet its obligations under the Berne Convention. Justice Ginsburg opined: “We are not talking about a case where you’ve had the protection, enjoyed it and then it expired.” Mr. Falzone, however, did not concede the point but repeatedly argued that when Congress determines that a work should receive “zero” protection it still qualifies as a “limited time” for purposes of the Progress Clause.
The Court did not delve too deeply into the dispute between the petitioners and the government over whether the First Congress, in the original Copyright Act of 1790, granted copyright protection to works in the public domain. This historical question is potentially significant insofar as it would set a precedent of Congress restoring works in the public domain. The issue came up in an exchange between Justice Sotomayor and Mr. Falzone. Later in the argument, when the government was presenting its case, Justice Alito suggested that, even if it is true that the Act of 1790 removed some works from the public domain, it “show[s] at most that retroactive protection can be granted when there is an enormous interest in doing so, namely, the establishment of the uniform copyright system at the beginning of the country.”
Another issue that some of the Justices were interested in is whether Congress’s decision to remove works from the public domain furthers progress in science and the useful arts, the basis for Congress’s authority to enact copyright term limits. Mr. Falzone argued that “a statute that does nothing, like this one, but take old works out the public domain without any impact on prospective incentives, cannot stimulate the creation of anything.” This was argument was met with some skepticism from Justice Sotomayor, who argued that the law Congress passed create an incentive for foreign authors to promote their works in the U.S. Chief Justice Roberts joined in, suggesting that the law does create at least some benefit for American authors abroad. He noted that the Court of Appeals described the incentive as “meager,” but said “we haven’t really required much more than that.” Justice Scalia seemed most open to the argument that this law does not further any progress in science or the useful arts.
While Mr. Falzone conceded that copyright laws in general are in some tension with the First Amendment right of expression insofar as some works cannot be reproduced by the public or performed publicly, he argued that this situation was unique. Mr. Falzone stated that “An ordinary copyright statute does not revoke the public’s Federal right to copy and use works in the public domain.” The effect of the legislative scheme at issue here was to take speech away from the public and convert it into private property, which he argued should trigger heightened First Amendment scrutiny. In answering a question from Justice Kennedy about the nature of the public domain, Mr. Falzone stated that “the public domain is owned collectively by the public, and in fact, decisions of this Court going back to the 19th century refer to it as public property.”
Solicitor General Donal Verrilli argued the case on behalf of the government. He argued that rather than set a term limit of zero, Congress had simply not entered into treaties with certain countries, meaning that their nationals were denied copyright protection in the U.S. He went on to state that the law at issue simply grants them the term they would have received had they been eligible for copyright protection when they published their works, or complied with copyright formalities that the U.S. no longer requires.
Justice Alito then asked what would happen in a case in which Congress provided copyright protection to works that had a definite term of years that had expired. Mr. Verrilli urged the Court to hold off on deciding that issue, but stated that Congress may be able to plausibly do so, subject to the limit that any grant of copyright would necessarily have to go to an author.
Justice Alito how that limit applied in this case, in which Congress restored copyrights to numerous authors who long ago passed away. Mr. Verrilli answered by noting that the legislation at issue only applies to works that are still under copyright protection in the authors’ own country and highlighting the importance to the U.S. of unambigously complying with the Berne Convention. This answer was plainly unsatisfactory from the viewpoint of Justice Scalia, who told Mr. Verrilli that “this is either okay under the copyright clause or it isn’t” and that any treaty obligations were irrelevant to that threshold inquiry. Mr. Verrilli insisted that there were not any textual limitations in the text of the Constitution that precluded Section 514.
Justice Breyer and Mr. Verilli had a rather lengthy dialogue in which Justice Breyer was openly skeptical that Section 514 was doing anything to lead to the creation of new copyrightable works but was only burdening consumers who will now be forced to pay higher prices to acquire works that were previously in the public domain. Justice Breyer described the effects of the law as creating a situation in which “libraries, music lovers, book buyers will either pay more for things already in existence or will simply be unable to get them if they are orphans [works for which the copyright holder is unknown], so that other countries will impose similar kinds of restrictions.” Justice Breyer echoed Justice Scalia’s earlier comments in questioning whether Section 514 promotes any progress in science or the useful arts.
Mr. Verilli argued that Section 514 should not be subject to heightened First Amendment scrutiny. He raised the specter of any future adjustments by Congress of existing copyright laws being subject to First Amendment challenges. The Chief Justice asked whether if the national anthem were suddenly to receive copyright protection, Jimmy Hendrix’s unique rendition would be possible? Mr. Verilli noted that Section 514 contains some protection for derivative works and further emphasized the traditional ways in which copyright laws have been seen to be harmonious with the First Amendment: the idea/expression dichotomy and the fair use exception.
On the First Amendment issued, Mr. Verrilli emphasized the U.S. interest in demomstrating compliance with the Berne Convention. He commented that “Congress enacted section 514 at the urging of executive branch officials who were charged with trying to ensure that we could integrate ourselves into the international system of copyright protection.” He argued that even if intermediate scrutiny applied in the First Amendment analysis, the law at issue would pass muster given the strong U.S. interest in being seen as in compliance with the Berne Convention. Justice Breyer was unpersuaded by this argument, noting that the briefs in the case argued that the U.S. could have passed legislation that was less restrictive of First Amendment rights in order to meet its obligations under Berne.
There were obviously some divergent views at oral argument, and I will update this blog when the Court gets around to issuing its opinion in the case.