Eye on IP

Vol. No. 2012
Wednesday, February 1, 2012

Supreme Court: Government Can Copyright Foreign Works Once in Public Domain

by Sheldon Mak & Anderson on February 1, 2012

The Supreme Court issued an important copyright decision earlier this month, ruling that Congress acted constitutionally when it restored copyright protection to foreign works that had once been in the public domain. As we discussed in an earlier post, the 1994 law was part of an effort to implement the Berne Convention, a treaty that gives U.S. works reciprocal protection overseas.

The law was challenged by orchestra conductors, teachers, and film archivists who argue that they relied on the free availability of such works. Specifically, they argued that the law exceeded Congress's power to grant copyrights and for infringing their own First Amendment free speech rights.

In a 6-2 decision, the Supreme Court disagreed on both arguments. With respect to the power of Congress to alter the copyright status of the works, Justice Ruth Bader Ginsburg said Congress was acting "comfortably" within its powers when it restored copyright protection to foreign works under the Berne convention.

The Court also rejected the notion that the law violated the First Amendment's guarantee of free expression.

"Nothing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain," Ginsburg wrote.

Justices Stephen G. Breyer and Samuel A. Alito Jr. dissented. In his dissent, Breyer argued that the majority overlooked the fact that copyright law should not only protect artists, but also foster new works and promote knowledge sharing.

"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?" Breyer wrote.

"I believe the answer is no."

What do you think?

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