Golan v. Holder: Should the US be Singing a New Copyright Tune?

One night, you could listen to Sergei Prokofiev’s “Peter and the Wolf” with your friends, remix it with another tune and then pen a bestselling book titled Peter and the Wolf and Zombies. That would all change in 1994 with the signing of the Uruguay Round Agreements Act, a trade agreement that restored the copyright of foreign-created works in the US. Works like Prokofiev’s that had been in the public domain for decades were all of a sudden taken out. The impact of the trade agreement was extensive. Other notable works that lost their place in the public domain include Picasso’s “Guernica,” the British films of Alfred Hitchcock, Astrid Lindgren’s earliest Pippi Longstocking books, stories by H.G. Wells, Fritz Lang’s “Metropolis,” and Leni Riefenstahl’s “Triumph of the Will.”

Chief Justice John P. Roberts of the US Supreme Court raised a similar concern earlier last month: “One day I can perform Shostakovich; Congress does something, the next day I can’t. Doesn’t that present a serious First Amendment problem?” he wondered out loud. He, along with his colleagues on the bench, heard the oral arguments in the case of Golan v. Holder on October 5, 2011, which is shaping up to be a major copyright case in the US with wide-reaching ramifications. At issue in this case is Congress’s power to reinstate copyright protection for works that have already entered the public domain, thereby opposing First Amendment free speech interests in having these works remain in the public domain.



Lawrence Golan, after ten arduous years navigating the legal system, has brought this case all the way to the Supreme Court of the United States. Golan, a music professor, is a conductor on the side. His company used to purchase the Prokofiev symphony for $100 and play it until the sheet music was worn out. Since the trade agreement, however, he has had to rent it, at a cost of several hundred dollars for each performance. This was a prohibitive cost for him and his company. For his attorney, Anthony Falzone, who hails from the Stanford Law School Center for Internet and Society, Golan is the perfect face for the case; Golan exemplifies the real-life implications of this piece of legislation for community orchestras and creative individuals in general. Since the case was first launched, Golan and Falzone have been backed by prolific groups, such as Google, the American Library Association and the American Civil Liberties Union.

A Necessary Evil?

Against Golan and these powerful organizations stand Congress and the international community at large. Congress, which upheld the 1994 trade agreement, argues that restoring copyright to such foreign-created works is necessary to comply with treaties and foreign trade agreements. In turn, this gesture of cooperation will mean that copyright protection for the works of American creators would be respected abroad.

The appellate court, the U.S. Court of Appeals for the 10th Circuit, sided with Congress. The three-judge panel ruled that the government “has demonstrated a substantial interest in protecting American copyright holders’ interests abroad.” They cited billions of dollars that were purportedly lost because foreign countries were not providing copyright protection to American works. Thus, shrinking the public domain was a necessary evil in order to make American works commercially viable outside of American soil.

Moreover, the judges disagreed that the plaintiffs’ First Amendment rights had been violated by the trade agreement, stating that speech rights do not draw “such absolute, bright lines around the public domain. 

What is Copyright Really For?

Golan, on the other hand, has put forth the argument that Congress’s action violated First Amendment rights and  obscured the original intent of the Constitution’s copyright clause, which is “to promote the progress of science and useful arts.” Therefore, the applicants in the case force us to tackle more fundamental questions than the relationship between international treaties and domestic law, namely the Constitution. In brief, “This case raises the question, ‘What is copyright really for?’ Is it just something that benefits authors, or is it something that benefits society?” asks Falzone.

For Google, one of Golan’s supporters, Congress’s action is very much against the interests of society and disadvantageous to all. By shielding works in the public domain, Congress would “chill” Google’s efforts to use the Internet to make accessible to the public “the vast stores of human knowledge and experience recorded in books” and other media, the company explained before the Court. In its brief, Google cites an example: it is currently in the works with the University of Michigan libraries to digitize the 7 million books in their collection. “Even for a large company like Google, the possibility that works in the public domain will be legislatively deemed copyrighted in the future is a daunting and complicating prospect,” the brief read.

These repertoires of past learning and scholarship underline a larger problem with the idea of the pubic domain. Prof. Peter Decherney from the University of Pennsylvania explain why restoring the copyright of works in the public domain is differentand more profoundthan extending copyright terms (Sonny Bono Copyright Extension Act [17 U.S.C. §§ 108, 203(a)(2), 301(c), 302, 303, 304(c)(2)]Eldred v. Ashcroft [537 US 186]) in a recent op-ed for the NYTimes: “By removing works from the public domain, Congress has destabilized it. If foreign works can have their copyrights restored, why not works made in the United States? Filmmakers, producers and others who regularly rely on the public domain will become wary of using it.”

A Slice of the Pie:

While Falzone and Golan may demand us to tackle the question of “What is copyright really for,” it would be more manageable to tackle a little slice of the pie, specifically the film industry, and to try to ascertain how this case could play out in their commercial and artistic activities. The Motion Picture Association of America (MPAA), in a friend of the court brief filed in the case before the Supreme Court, celebrated Congress for “reinforcing the United States’ position as a proponent of strong copyright protection throughout the world.” In other words, it regarded the expansion of copyright to be good for its industry.

As Prof. Decherney points out in his New York Times op-ed piece, the MPAA is much more indebted to the public domain than to any kind of intellectual property regime. History tells a story of shared knowledge, common experiences and collaborative endeavours. In the 1930s, when the famed Walt Disney was gearing up to make its first feature-length animated film, he turned to the Brothers Grimm’s version of the story of Snow White. He explained that the story “was well known,” as it had been embedded in Western culture since the mid-nineteenth century. Like the story of “Snow White,” “Cinderella” not only generated the ever-popular Disney film, but has also generated a dozen operas, a handful of films, a jump rope song and even a video game over the years. The story and the characters would be familiar to his audiences, so he could take more artistic license with them.

Parting Thoughts:

Along with other industries, such as music and book publishing, the film industry really stands to gain from the continued preservation of the public domain. Our shared knowledge, common experiences and collaborative endeavours permeate the imagination of legendary filmmakers as well as our own artistic work and our everyday lives.

Golan v. Holder is yet to be decided by the justices on the US Supreme Court. It has been argued in front of eight of the nine justices on the bench. In the event of a tie, the decision by the Tenth Circuit will stand. Already, much buzz is being generated in the media. One commenter for Mother Jones, a non-profit news organization, noted that Justice Thomas was not showing his cards as usual, Justice Ginsberg was leaning toward removing “Peter and the Wolf” from the public domain, and Justice Breyer was opposing Ginsberg’s bent. At this point, it is highly uncertain how the final decision will shape up. What is certain is that it will not be split along traditional ideological lines.

With the Supreme Court of Canada set to decide an unprecedented number of intellectual property law-related cases by the end of the year, this landmark US case could set the right tone for its Northern neighbours. And hopefully we will all sing a different copyright tune at the end.

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