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More About the Public Domain: Golan v Holder

Last week, this blog discussed copyright extension in Europe. A new E.U. Directive grants a longer term of protection to sound recordings, and would, amongst other things, prevent a trove of Beatles tunes from entering the public domain over the next few years. However, the proper scope of copyright protection is a perennial issue for all countries with IP legislation, not just E.U. countries.

Next week, the Supreme Court will hear a case about American copyright legislation. Golan v Holder, which was originally filed as Golan v Ashcroft in 2001, deals with copyright restoration rather than copyright extension. It challenges the constitutionality of a 1994 Act that restored copyright protection to certain foreign works which had fallen into the public domain. (Docket No. 10-545)

Unlike the debate about copyright extension in Europe, this suit raises issues of fairness as well as the proper scope of copyright protection. The lead plaintiff, Golan, is a conductor who had become accustomed to using musical works that went back under copyright protection after the Act was passed. As Ted Johnson at Variety puts it: “Rather than being a case about free speech, the MPAA suggests, it is ‘solely about a narrowly defined class of foreign works that prematurely fell into the public domain due to rigid copyright formalities.'” However, the plaintiffs argue further that, although the Act was passed in order to comply with a Treaty, the government had no ‘legitimate interest’ in removing the works from the public domain.

The district court and Court of Appeals for the 10th Circuit agreed that the legislation constitutes a content-neutral regulation on free speech that should be subject to intermediate scrutiny by the court. The Court of Appeals found in favor of the government on appeal, determining that the Government had the authority to enact the measure. As noted by one blogger at the American University Intellectual Property Brief, there has been no circuit split on the issue, and it is somewhat striking that the Supreme Court has granted certiorari. “Perhaps the Court intends to follow up it’s decision in Eldred [Eldred v Ashcroft] by saying that although Congress has the power to extend the term of protection for works not in the public domain, it has no such power to reestablish that protection once gone?”

The case does raise a very significant issue – can the government ever grant copyright protection to works which have entered the public domain?

A number of significant art works are also at issue, including ones by Picasso and MC Escher.

[San Francisco Classical Voice]