The Consequences of a Shrinking Public Domain

By Maria Cheung

Reviewed by Jennifer Williams

It is common knowledge in Hollywood that many artists, writers and filmmakers rely on famous works in the public domain to create new derivative works or to re-create well known stories with their own unique spins.  In theory the pool of works in the public domain should be increasing as copyright protections expire but in reality, the works these artists, writers and filmmakers can choose from have slowly decreased. The reason for the decrease stems back to 1994 with Congress’ passage of the Uruguay Round Agreements Act, when millions of international works lost their public domain status. The Act restored the copyrights of many foreign works that were previously freely available.  Some of these foreign works include: Sergei Prokofiev’s “Peter and the Wolf,” Picasso’s “Guernica,” the British films of Alfred Hitchcock, Astrid Lindgren’s earliest Pippi Longstocking books, stories by H. G. Wells, the drawings of M. C. Escher, Fritz Lang’s “Metropolis,” Jean-Luc Godard’s “Breathless” and Leni Riefenstahl’s “Triumph of the Will.”

Congress passed the Act in order to allow the U.S. to comply with the international copyright agreement known as the Berne Convention.  In opposition to the Act, some orchestra conductors, film distributors and others in the industry have filed a lawsuit claiming that the Act violates the Constitution’s Copyright Clause, which permits Congress to protect works for “limited times.” These plaintiffs argue that the Act unconstitutionally gave copyright protection to foreign works that had never been previously copyrighted in the U.S.

The U.S. Supreme Court heard oral arguments on Wednesday, October 5th, in this landmark copyright case, Golan v. Holder. The justices (minus Justice Elena Kagen who has recused herself) seemed divided on the issue with some viewing the Act as ensuring the equal treatment of foreign and domestic U.S. works and others voicing concerns about its free speech implications. During Wednesday’s oral arguments, Plaintiff’s attorney Anthony T. Falzone of the Stanford Law School Center For Internet and Society argued that for centuries, the Constitution’s limited times provision had been interpreted as once a work entered the public domain, it had to remain there. Falzone continued to state that the law at issue upended that precedent by eliminating the certainty of public domain status.

“The point of the limited times restriction is it forces Congress to tell us when the end has come, and if Congress is forever free to change its mind, then we can never know if the end has come,” Falzone said.

Several of the justices including Justice Sonia Sotomayer and Justice Ruth Bader Ginsburg disagreed and noted that the law extended protection to works that never possessed U.S. copyright protection, either because they were created in countries that did not have copyright treaties with the U.S. or for other various reasons. Sotomayer told Falzone that he appeared to base his argument on a different situation, in which a copyright was granted and expired and then Congress revived it.

“Isn’t that different from not having had the opportunity at all, and being given a term to exploit your work and protect it?” she asked.

Ginsburg stated that the law simply provided foreign works with the same copyright protection as American works enjoy.

“We are talking about Shostakovich, Stravinski, and I say: Well, what’s wrong with giving them the same time that Aaron Copland got?” she said.

U.S. Solicitor General Donald B. Verrilli Jr. defended the Act as well and argued it was intended to rectify the problem that some foreign authors had because they had never been granted U.S. copyright protection due to the lack of copyright relations between their home countries and the U.S. He stated that granting those works protection is simply “the price of admission” the U.S. must pay to the Berne Convention. This will help form relationships of reciprocity between the U.S. and other countries, thus ensuring that U.S. works will receive the same protection in these foreign countries.

“If we didn’t have this provision, then we were not going to be taken seriously,” he said. “Our works were not going to be protected in these foreign countries, and it would defeat the purpose of joining Berne in the first place.” Furthermore, according to Verrilli, there is nothing in the Constitution that prevents the government from restoring copyright protection to foreign works or even domestic works in the public domain.

However, Falzone disagreed and continued to argue that granting copyright protection to previous works in the public domain violated the free speech rights of the plaintiffs, who previously could use the works at issue for free and without anyone’s permission. These rights should not be stifled because of the government’s interest in complying with the Berne Convention, especially since there is no guarantee that foreign countries would actually reciprocate the protection.

Chief Justice Roberts seemed to agree with Falzone. Roberts said “One day I can perform Shostakovich; Congress does something, the next day I can’t. Doesn’t that present a serious First Amendment problem?”

Justice Antonin Scalia believes the law may not comport with another provision of the copyright clause, which states that copyrights are intended “to promote the progress of science and useful arts.” Scalia questioned whether taking foreign works out of the public domain does this or not.

“[The law] makes more money for the guy who wrote it, but doesn’t incentivize anybody to create art,” Scalia said.

According to a recent New York Times article, the effects of the Act have been palpable, particularly within the film industry. For instance distributors of foreign films have seen their catalogs diminished, students can no longer obtain copies of many films, archivists have postponed the preservation of important films and filmmakers have lost access to great works of literature and music that they could have used to create new works.

Despite the argument that the Act gives equal protection to foreign and domestic works and fosters a reciprocal relationship with other countries, I agree with Falzone, Roberts and Scalia that Congress cannot restore copyright protection to works that are already in the public domain. The Act’s consequences beg the question of if foreign creators can have their rights restored in the U.S., then why can’t domestic creators.  A better compromise would be if the Act were not retroactive. Future and present foreign works that have never entered the public domain should enjoy U.S. copyright protection.

The Act will also have a profound impact on future artistic and technological innovation. Filmmakers and other artists have consistently used public domain works as a foundation for new works. Examples of this include Walt Disney’s adaptation of the Brothers Grimm’s Snow White and the various film versions of Lewis Carroll’s Alice’s Adventures in Wonderland. When Disney was asked why he chose Snow White to be his first film, the legendary film creator explained that it was well known and trusted by audiences. Thus, Disney believed he could take an artistic risk with the story and viewers would respond well. Similarly, many artists through multiple generations have adapted Alice’s Adventures in Wonderland. Most recently, Tim Burton’s 3-D film of Alice in Wonderland became one of the ten highest-grossing films in history despite an initially mixed public response to the new 3-D technology.

Hollywood has long understood the value of the public domain. The M.P.A.A. even maintains a registry in which its members can claim a limited, industry-designated right to various public domain works. This registry allows filmmakers to take stories and characters from the collection without fear of an immediate legal challenge. Congress and the Supreme Court should remember to take the industry’s views into account on this matter. Perhaps if the various constitutional arguments are not compelling enough for them, they should simply look at their children’s Disney films and defer to custom.

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