Public Domain Works Can Be Copyrighted Anew, Justices Rule

WASHINGTON — The Supreme Court on Wednesday upheld a federal law that restored copyright protection to works that had entered the public domain.

By a 6-to-2 vote, the justices rejected arguments based on the First Amendment and the Constitution’s copyright clause, saying that the public domain was not “a category of constitutional significance” and that copyright protections might be expanded even if they did not create incentives for new works to be created.

The case, Golan v. Holder, No. 10-545, considered a 1994 law enacted to carry out an international convention. The law applied mainly to works first published abroad from 1923 to 1989 that had earlier not been eligible for copyright protection under American law, including films by Alfred Hitchcock, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso.

The precise number of affected works is unknown but “probably number in the millions,” Marybeth Peters, the United States register of copyrights, said in 1996.

The law was challenged by orchestra conductors, teachers and film archivists who said they had relied for years on the free availability of such works.

Justice Ruth Bader Ginsburg, writing for the majority, said the law had merely put “foreign works on an equal footing with their U.S. counterparts.”

“Assuming a foreign and domestic author died the same day, their works will enter the public domain simultaneously,” she wrote.

She gave examples. “Prokofiev’s ‘Peter and the Wolf’ could once be performed free of charge,” while now, she said: “The right to perform it must be obtained in the marketplace. This is the same marketplace, of course, that exists for the music of Prokofiev’s U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers.”

Indeed, she said, foreign works not eligible to be copyrighted in the United States before the 1994 law are somewhat worse off, as they receive “no compensatory time” for the period they had been in the public domain.

The Constitution authorizes Congress “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 and discoveries.”

In dissent, Justice Stephen G. Breyer, joined by Samuel A. Alito Jr., wrote that the clause meant to require a utilitarian approach, one under which authors were granted limited monopolies in order to encourage them to produce societally valuable works.

“Does the clause empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural purposes — all without providing any additional incentive for the production of new material?” Justice Breyer asked. The answer, he said, was no.

“The statute before us,” Justice Breyer wrote, “does not encourage anyone to produce a single new work.”

Justice Ginsburg countered with a broader interpretation of the provision. “The copyright clause,” she wrote, “does not demand that each copyright protection, examined discretely, operate to induce new works.” Rather, she wrote, the intellectual property laws generally, including the international copyright system, must address the general purpose of the clause, that of encouraging “the dissemination of existing and future works.”

Justice Ginsburg also rejected challenges to the law based on the First Amendment, saying that free speech interests are adequately protected by the fair use doctrine and the principle that only expression and not ideas are eligible for copyright protection.

Justice Breyer said the majority’s approach did not take adequate account of the importance of free expression. “By removing material from the public domain, the statute, in literal terms, ‘abridges’ a pre-existing freedom to speak,” he wrote, referring to a key word of the First Amendment.

Justice Breyer added that the decision upholding the law would have negative practical consequences, as owners of copyrights now charge for works that were once free. “If a school orchestra or other nonprofit organization cannot afford the new charges, so be it,” he wrote. “They will have to do without — aggravating the already serious problem of cultural education in the United States.”

Justice Elena Kagan did not participate in the case, presumably because she had worked on it as United States solicitor general.

In a second decision issued Wednesday, Mims v. Arrow Financial Services, No. 10-1195, the court unanimously ruled that a 1991 federal law, the Telephone Consumer Protection Act, allowed consumers to sue in federal court over abuses involving automatic dialing equipment, recorded messages, unsolicited faxes and similar practices.

The law mentioned suits in state courts, and the question for the justices was whether that meant those were the only available courts. Justice Ginsburg, writing for the court, said the law did not bar suits in federal courts.

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