D.C. - (Mealey's) Formerly copyrighted works or never copyrighted works that
have fallen into the public domain become the property of the public, a
Stanford University professor told the U.S. Supreme Court yesterday (Lawrence
Golan, et al. v. Eric H. Holder Jr., et al., No. 10-545, U.S. Sup.; 9/2/11,
asked by U.S. Supreme Court Justice Anthony M. Kennedy whether he views "public
domain" as a "synonym" for copyrights that have ended or whether the term means
something more substantive, Anthony T. Falzone, representing a diverse group of
petitioners reliant on public domain works, including named plaintiff Lawrence
Golan, replied that it is the latter.
to be precise, our position is once Congress calls the limit, that is, once it
says this work is unprotected - whether it's the expiration of 28 years or a
decision to give it no protection - it's creating affirmative rights in every
member of the public. Yes, they own it," Falzone replied.
1989, the United States joined the Berne Convention for the Protection of
Literary and Artistic Works, requiring each signing country to provide the same
copyright protections to authors in other member countries that it provides to
its own authors. However, the implementing legislation in the United
States did not extend copyrights to foreign works that were already in the
public domain in the United States. So in 1994, the United States signed
various trade agreements, including one requiring that its signatories comply
with Article 18 of the Berne Convention and extend copyright protection to all
works of foreign origin whose term of protection had not expired. To
comply with these international agreements, Congress enacted the Uruguay Round
Agreements Act (URAA). Section 514 of the URAA implements Article 18 of
the Berne Convention, restoring copyrights in foreign works that were formerly
in the public domain in the United States.
along with several others, filed the instant lawsuit against the United States
in the U.S. District Court for the District of Colorado in 2001, seeking a
declaration that the Copyright Term Extension Act (CTEA) and Section 514 are
unconstitutional. The government won summary judgment, but the 10th
Circuit U.S. Court of Appeals partly reversed after finding that the Section
514 challenge was valid. On remand, the District Court sided with Golan,
concluding that Section 514 is unconstitutional "to the extent [it] suppresses
the right of reliance parties to use works they exploited while the works were
in the public domain." The parties again appealed to the 10th Circuit,
which in June 2010 ruled in favor of the government after deeming Section 514
sufficiently narrowly tailored to protect American copyright holders' interests
District Court was instructed to grant summary judgment to the government,
leading Golan to petition the Supreme Court for certiorari, which was
granted in March.
the high court to uphold the final grant of summary judgment, Solicitor General
Donald B. Verilli Jr. rejected Falzone's suggestion that Section 514, in
effect, grants a perpetual copyright term. The statute was enacted to
"remedy" a problem Verilli characterized as "a matter of foreign
relations." "We did not have treaties with these individual countries,"
the solicitor general noted. "What [Section] 514 says is: With
respect to a defined set of foreign authors, they get the remainder of the
copyright term that they would otherwise have gotten, and nothing more, had
they lived in countries where we had . . . copyright relations at the time they
published, or had they complied with the formalities that we used to enforce .
. . and renew copyrights."
"That's what it does. It doesn't grant anybody a perpetual
term. It does not renew a copyright term that has run its full course,
and create a new one. . . . What 514 does, is provide copyright
protection to works of foreign authors whose works still have copyright
protection in their own country, whether they are dead or alive. So long
as the work has protection in [their] country, then 514 provides copyright
protection," Verilli said.
Note: Full coverage will be in the Oct. 25 issue of Mealey's Litigation
Report: Intellectual Property. In the meantime, the transcript is
available at www.mealeysonline.com or by calling the
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