1994 Treaty Exacerbates U.S. Copyright Law, Supreme Court Justices Say

The URAA was ratified by Congress in order to comply with the 1886 Berne Convention for the Protection of Literary and Artistic Works, which the U.S. joined in 1989. Compliance with the convention required the U.S. to reinstate copyright protections to foreign authors whose works had entered the public domain. Section 514 of the URAA restored copyrights to such works as Pablo Picasso’s Guernica, Sergei Prokofiev’s Peter and the Wolf and the films of Alfred Hitchcock. In 2001 a coalition of conductors, professors, archivists and movie distributors sued the U.S. attorney general claiming that Section 514 violated their First Amendment rights and the principles of the copyright clause of the Constitution. Golan went through two appeals in the 10th U.S. Circuit Court of Appeals in Denver. It ultimately rejected the First Amendment argument and ruled the Constitution doesn’t prevent the removal of works from the public domain.

Chief Justice John Roberts said Section 514 shows Congress is interested in protecting the rights of U.S. authors overseas. “If I write a great novel, I want the confidence to ensure that it will be protected when it is published in China,” he said. Anthony Falzone, attorney for petitioner and music conductor Lawrence Golan, said such a work now is protected by the convention, which permits negotiated exceptions to the restoration requirement.

Solicitor General Donald Verrilli labeled Section 514 the “price of admission to the international system,” and argued that the law was necessary to protect U.S. copyrights “subject to serious forms of piracy in other countries.” There’s “a substantial interest in complying with the Berne Convention,” because it will offer better international protections to holders of U.S. copyrights, he said. Such protection “requires an adjustment of our rules to conform with the international system,” he said. Justice Antonin Scalia said he didn’t find the solicitor general’s argument “appealing.” Scalia said “a treaty cannot expand the rights of the federal government."

Section 514 is a “huge departure of copyright law” and violates the Constitution’s copyright clause, said Falzone. Article I of the Constitution says “Congress shall have the power … to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings.” With Section 514, “Congress is setting a second time limit” on works already in the public domain because Congress initially determined that such works should be protected for “zero years,” Falzone said. Most of the authors of works that would retroactively be taken from the public domain have passed away and such incentives are unneeded, Falzone said. “The authors are long gone.”

Justice Stephen Breyer said the retroactive application of copyright protections to works in the public domain may only exacerbate the problems in current copyright law. “There are millions of instances where people want to go back and use music and there is no way to do that without scofflaws and spending millions to hire attorneys,” he said. “It’s a general problem … but the argument here will make it millions of times worse.”

Justice Sonia Sotomayor examined practical concerns with retroactively applying copyright protections to works in the public domain: “Would libraries have to stop certain books from circulation? How would they protect themselves from litigation?” Roberts asked Verrilli if he thought authors of derivative works, works that are based on a pre-existing work, are “just out of luck.” “What about Jimi Hendrix, he has a distinctive rendition of the national anthem. … He can’t do that right? So he’s just out of luck?” Roberts asked. “The government interest is rather small,” Roberts added. “It’s hard to say that will tip the balance in your case.”

Justice Elena Kagan recused herself in the case, which means it will be decided by eight members of the court. In a split 4-4 decision, the petitioners will lose.

Public interest groups were optimistic about their prospects following the oral argument. “We have a definitive chance of winning,” said Gigi Sohn, president of Public Knowledge, a supporter of the petitioner. “The copyright clause argument got a lot of play,” said Sohn. “I really didn’t see how this incentivizes more creation to give retroactive rights to those who were already dead. Clearly, it seems as if the court has moved to more skepticism that whatever Congress does in the copyright space is acceptable.” The MPAA had no comment on the case, although CEO Chris Dodd said he was “impressed” with the justices’ knowledge.

"What is important about this case is that it represents an attempt by the government to take away part of the public domain that has always been the public property,” said Aden Fine, senior staff attorney at the ACLU. “In our view, the First Amendment poses serious limitations on the government’s ability to do that,” he said. “They seem to be grappling with the complicated issues raised by the government interest in maintaining good relations with other countries. But on the other hand some of the justices made clear that Congress can’t pass a treaty and take away constitutional rights.”