US Supreme Court Approves Copyright of Works in Public Domain

Globalization takes its toll. This time the toll is to be paid by Americans who want to use works that had, according to US law at the time, entered the public domain but that have been removed from that status and place back under copyright by a 1994 act of the US Congress in order to bring that country into line with the Berne Convention for the Protection of Literary and Artistic Works. As you might imagine, a number of disappointed users sued the US government, arguing that according to the intent of the Copyright and Patent Clause of the American constitution once a work was in the public domain it could not be withdrawn from it. Last week the case was ruled on by the US Supreme Court in a 6-2 decision, Golan v. Holder, No. 10-545 [PDF]. Justice Ginsburg, writing for the majority, ruled that the law in question:

does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.

As always, the SCOTUSblog is an excellent source for material surrounding the decision. To learn more about the musician, Lawrence Golan, who challenged the law, take a look at a couple of articles on the issue in The Chronicle: 1, 2.

The works affected in 1994, judged to number in the millions, are largely works by non-Americans that, as foreign works, were not as protected by copyright as were native works. The “recaptured” works included music by Prokofiev, Shostakovich, and Stravinsky; and:

books by H.G. Wells, Virginia Woolf, and C.S. Lewis; films by Alfred Hitchcock, Federico Fellini, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso.

Canada ratified the Berne Convention in 1931, signed it in 1948, and acceded to current forms in 1970 and 1998.

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