The Times on Golan v. Holder and the Public Domain

A strong and clear Times Editorial defends the idea of the public domain against the onslaught of congressional interference. We await a supreme court decision on the case in point. We concur with the Times, as stated below:

The Public Domain

A major copyright case argued at the Supreme Court last week tests Congress’s power to expand copyright protection against First Amendment interests in having older works remain in the public domain. In Golan v. Holder, free speech rights should prevail.

The lawsuit was brought by orchestra conductors, educators and others who challenged Congress’s ability to restore copyright protection to foreign works that had been in the public domain for decades. They make a convincing argument that restoration has caused them to lose free expression rights central to their professions.

In 1994, Congress restored the copyright of many important works by foreign authors — like Prokofiev’s “Peter and the Wolf” — that had entered the public domain in the United States but are still protected by copyright in their own countries. The restoration was part of a larger trade pact, the Uruguay Round Agreements Act.

The government contends that Section 514 of the pact, promotes progress through “active participation” in the global economy. But the restoration breaks with two centuries of understanding about the public domain: what enters there remains there, free to all for any kind of use. Section 514 violates the First Amendment by removing works from the public domain and curbing the public’s right to expression and it impedes growth of knowledge.

As the petitioners said in their brief, “no treaty can authorize the government to do what the Constitution otherwise prohibits.” Chief Justice John Roberts Jr. put it this way during argument: “One day I can perform Shostakovich; Congress does something, the next day I can’t. Doesn’t that present a serious First Amendment problem?”

Copyright gives writers and others the incentive to create by giving them exclusive right to their work. But Congress’s power to grant copyright is limited in time and scope so that works can move into the public domain, where they become an essential part of our culture. The government must find other ways to comply with the trade treaty without curbing free expression.