By Christine Haight Farley, a law professor at American University Washington College of Law
The Supreme Court handed down its decision in Golan v. Holder yesterday. The case could have been the antidote to its 2003 decision in Eldred v. Ashcroft. It could have vindicated the defenders of the public domain. It could have breathed life into the Copyright Clause in the Constitution. But it didn’t. Instead it hewed so closely to the Eldred decision that it will take wily law professors countless hours of postmortem to remind themselves of why they had any optimism in the first place.
Like Eldred, Golan involved an act of Congress that reduced the public domain. In Eldred, the Court rejected a constitutional challenge to the Copyright Term Extension Act, which added 20 years to the term of copyrights. In Golan, the court rejected a similar challenge to § 514 of the Copyright Act, which restored the copyrights of foreign works that had been in the public domain in this country apparently in order to implement our obligations under the WTO TRIPS Agreement. As a result, tens of thousands of works can no longer be freely used. Since many of these works are quite old—some created as early as the 1920s — authors’ permission to use them may be impossible to obtain because simply locating the author may be impossible. In any event, Mr. Golan will no longer be able to afford Stravinsky’s symphonies as he conducts the University of Denver’s orchestra.
The first eleven pages of the opinion are devoted to an explanation of our international obligations under copyright treaties. Got it: bad policy or not, we had no choice. Obviously, the opinion was not authored by Justice Scalia.
The “Copyright Clause” of the Constitution states that “Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings.” From this, petitioners constructed two constitutional challenges to the legislation. First, that by extending the terms of expired copyrights, the law oversteps the “limited Times” constraint. Justice Ginsburg’s response: “Our decision in Eldred is largely dispositive of petitioners’ limited-time argument.” Second, that by extending the terms for works already created, the law fails to fulfill Congress’ duty to promote the progress of knowledge. Again, Justice Ginsburg: “In Eldred, we rejected an argument nearly identical to the one petitioners rehearse.” Ouch!
And just like that, and in fewer pages than it took to elucidate the international imperatives for copyright restoration, the majority is now onto petitioners’ First Amendment challenge. Here it is déjà vu all over again — why did the Court grant cert? — when the Court outlines the “speech-protective purposes and safeguards” embraced by copyright law that make it First Amendment compliant.
In this 6-2 decision (Justice Kagan recused herself presumably due to prior involvement), Justice Breyer wrote a dissenting opinion in which he was joined by Justice Alito. Justice Breyer similarly wrote the dissent in the 7-2 Eldred decision. Justice Breyer points to the text of the Constitution, the history of copyright, and copyright precedent to “demonstrate that the Copyright Clause places great value on the power of copyright to elicit new production.” Count Justice Breyer in as one who would have thought that Congress’ withdrawal of material from the public domain would have distinguished this case from Eldred.