Wednesday, October 5, 2011 marked the final hearing for the case of Golan v. Holder before the United States Supreme Court. The court battle has waged for over a decade and expects the final decision before the end of the current Supreme Court session. The decision will determine whether the United States Congress is able to extend Copyright Protection retroactively to millions of works currently in the public domain of the United States. This decision will affect publishers, scholars and librarians in many fields of study, but perhaps none more than music. If the previous findings of the District Court and Court of Appeals are upheld, and Section 514 of the Uruguay Round Agreement Act (URAA) is enacted, a devastatingly large portion of twentieth century works by composers such as Shostakovich, Stravinsky and Prokofiev, that have existed for decades in public domain will be placed under copyright protection and effectively unavailable for performance or study for less than prohibitive expense. This law would have a devastating effect on the ability of music libraries to fulfill their function to students and faculty, as well as their ability to act as the keepers of the musical treasures so highly valued by the music world.
For the reader who is not well acquainted with legal terms, a few definitions are provided here. “Amicus brief” is a term for a statement of argument filed by someone who has a vested interest in a case, but is not a direct party. A “Merit brief” is an initial statement of argument filed by both parties of the court case, the petitioner and the respondent, who may, then, reply to the other’s brief. The term “reliance party” refers to users of works potentially restored into copyright protection that, prior to this restoration, used such works based on their position in the public domain.
The Constitution of the United States, Article I, section 8, clause 8, reads, “[The Congress shall have power] 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 [.]” The two elements of this clause that cause extensive debate in the court case of Golan v. Holder are “limited Times” and “promote the Progress of Science and useful Arts.”
The second most commonly referenced text in the case is that of the First Amendment. The First Amendment of the United States Constitution reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances” (emphasis added). The petitioners in Golan v. Holder argue that Section 514 of the URAA abridges the freedom of speech and therefore is unconstitutional; the respondents claim it does not abridge freedom of speech and therefore is constitutional.
The original Copyright Act of 1790 set the time of copyright protection at fourteen years, with an optional renewal period of an additional fourteen years. Amendments were made in 1831 and 1909 that marginally extended the time of copyright protection, and the Copyright Act of 1976, which made a more substantial shift in the perception of rights under copyright law. This law set for preexisting works that had not yet entered the public domain, the protection term of ninety-five years from the date of first publication, and for new works eliminated the renewal period and set protection as the duration of the author’s lifetime plus fifty years. Then we come to the Copyright Term Extension Act (CTEA) of 1998, sometimes known as the Mickey Mouse Protection Act, because the Walt Disney Corp. was an outspoken advocate of the act, which, when passed, extended the copyright protection over Mickey Mouse and other Disney characters just as they were about to expire. The CTEA extended the copyright term of protection from fifty years past the author’s lifetime to seventy. After a decade of challenges and appeals before the United States Supreme Court finally decided the case in 2003.The Court decided to uphold the findings of the District Court and the Court of Appeals that the CTEA was within the limitations of the Constitution, and, as the 1998 law prescribed, the term of copyright protection was extended to seventy years past the death of the author.
Berne Convention and the Uruguay Round Agreements Act
The U.S. signed the URAA in 1994 and by doing so provided for the automatic restoration of copyright for works currently in the public domain in the U.S. by authors of foreign countries. The URAA section 514 states that works qualifying for copyright restoration, referred to as “restored works,” will be under U.S. copyright protection for the remainder of the term of copyright that would have been under effect if the work had been created in the United States.
For example, Peter and the Wolf by Prokofiev was composed in the, then, USSR in 1936. Because it was written in a foreign country, and not previously eligible for protection under U.S. law, it has been in the public domain in the U.S. since it was written. Now, since U.S. copyright law states that works created before 1978 are protected for 95 years from the year of first publication, Peter and the Wolf is under copyright protection from the day that the URAA is enacted until the year 2031. The URAA states that copyright protection restoration is automatic, and no further steps need to be taken to ensure restoration. It does stipulate, however, that the owner of a restored work must notify reliance parties that the owner now intends to enforce their rights. Reliance parties are allowed a one-year grace period to sell stock, perform or display the work before they are liable for infringement. This grace period begins when the reliance party receives notification and ends precisely one year later. It is this section of law, Section 514, extending retroactive protection to all foreign works that is challenged in the court case Golan v. Holder.
Limits of the Copyright Clause
The petitioner argues that Section 514 of the URAA violates the “limited Times” of the Copyright Clause, specifically that Congress does not have the power to remove works from the public domain. It argues that once works enter the public domain it signifies that their “limited Times” of protection is over, even if that time of protection was zero years, and that upon entering the public domain, works cannot be removed. It cites the many amendments to the Copyright Law since it was originally enacted in 1790 that extended protection to new categories of works. In each case, the brief states, Congress extended this protection only to new works created after the enactment of the amendment and not retroactively to works previously created.
The respondent argues that the Copyright Clause “does not prohibit Congress from restoring Copyright protection to existing unprotected works for a limited time.” It states that Section 514 extends protection for the same “limited Times” that the work would have been under had it been created in the United States, and as such is merely serving to level the playing field internationally. Because there is an end date for the copyright protection of restored works, the respondent argues that it falls under “limited Times” and therefore is in compliance with the Copyright Clause of the Constitution. They also argue that the original Copyright Act of 1790 did precisely what Section 514 is doing now by placing works in existence at that time under a new copyright protection.
In the Golan v. Holder United States Supreme Court Oral Argument, Justice Ginsburg queried why Shostakovich shouldn’t get the same term of copyright protection as Aaron Copeland simply because Copland was born in the U.S. and Shostakovich in Russia? Justices Sotomayor and Kennedy conducted an almost philosophical discussion about whether or not something can have an end if it had no beginning. They argued that if the foreign works never had a beginning of a term of protection, that there can have been no end, and such were not “in the public domain” per se, but rather had been always unprotected and open for exploitation and would now simply be given the time of protection that was due. This, they argued was well within the stipulation of “limited Times” and therefore constitutional under the Copyright Clause.
“Promotion of the Progress of Science and useful Arts”
The Amicus Brief for the American Library Association et al. argues that Section 514 of the URAA destabilizes the public domain, which in turn interferes with public access. It states that many organizations are not able to devote time and resources to ensuring works are either available or permissions are obtained, and instead rely on the dependability of the public domain as open for access. If this is called into question, they argue, such organizations will be crippled and the public will suffer.
The Amicus Brief for the Music Library Association et al. also discusses this issue. It states that withdrawing millions of works from the public domain will have a devastating effect on music performance and music scholarship; that it will result in the exact opposite of the Copyright Clause’s stated purpose. Under the URAA, many of the most important works of the twentieth century are now available only for rental, an expensive and extremely limited arrangement. The cost of renting these scores is beyond the ability of all but a few performance ensembles and libraries, and certainly beyond the budget of students who wish to study the music for research or performance purposes.
In a survey of their members, the MLA found that 55% of members reported that in the last ten years, since URAA went into affect, they had difficulty acquiring works by Soviet composers. These works are required study for students working toward major orchestral auditions and conducting careers. Librarians also reported having to severely limit their circulation of restored works because of the difficulty finding replacements. If these works are unavailable for study and performance they are in danger of being lost from the public consciousness and in the process hindering the development of a new generation of musicians, music teachers and music scholars. This is the opposite of the intent of the Copyright Clause to “[promote] Progress of Science and useful Arts.”
In the Golan v. Holder United States Supreme Court Oral Argument, this intent is discussed in relation to the Berne Convention. The U.S. joined the Berne Convention, it is stated, to ensure American authors copyright protection in foreign countries. Justice Sotomayor posits that the incentive for authors to create now that they can be assured of protection in other countries, as well as the incentive for foreign authors to create and bring their works to the U.S. knowing they will be protected is a promotion of “Progress of useful Arts.” The petitioner argues that while that is an incentive for future works, there is no incentive for works already created. Therefore, the petitioner states, the detrimental effect of removing the works from the public domain outweighs the progress made by the marginal incentive of copyright reciprocity. Justice Scalia agreed, saying “I’m not sure it promotes the progress of the useful arts. It makes more money for the guy who wrote it, but it doesn’t incentivize anybody to create art”
The respondent asserts that after joining the Berne Convention, it came to Congress’s attention that other countries in Berne believed the U.S. to be out of compliance with the Berne Convention Article 18, which requires parties to restore copyright protection to certain unprotected foreign works whose copyright terms have not yet expired in their country of origin. The Brief states that Section 514 of URAA is in response to that accusation and that it was necessary for the United States to set an example of compliance with Article 18 in order to encourage other countries to do so as well. This is clearly self-serving. We want our works protected around the world, so we hope that after this, they will be. The Amicus Briefs for the Music Library Association et al., American Library Association et al., and ACLU among others each argue that compliance with Article 18 could have been achieved by less extreme measures.
Violation of the First Amendment
In addition to being detrimental to the arts, petitioners argue that Section 514 is also a violation of the First Amendment of the Constitution of the United States. The Amicus Brief for the American Civil Liberties Union argues that Section 514 “imposes a significant burden on speech that is entitled to full First Amendment protection.” The Amicus Brief for the American Bar Association cites the Eldred v. Ashcroft ruling as providing precedence for the level of scrutiny to which Section 514 should be subject. In Eldred and, the Brief argues, in Golan v. Holder, there is no need for further First Amendment scrutiny because Congress has not altered the “traditional contours” of copyright protection. The Brief states that the “traditional contours” refer to the “idea/expression dichotomy,” or the practice of distinguishing between an idea and an expression, which makes only expression eligible for protection, and the “fair use” clause of the Copyright Act. The respondent argues that as these two elements are left in tact, there is no violation of the First Amendment.
The Amicus Brief for the American Civil Liberties Union argues differently. It argues that the quantity of works affected, which they cite as in the millions, qualifies Section 514 as a violation of the First Amendment. The removal of these works from the Public Domain, it argues, constitutes a significant burden on speech. It goes on to state that the public owns the works in the public domain, and therefore their removal is a violation of free speech. It cites the Tenth Circuit as explaining the progression of a work from creation, to copyright protected, to the public domain, and argues that by altering this sequence, it has limited speech in a significant way. The Merit Brief for Lawrence Golan et al. states: “removing works from the public domain contracts the universe of speech and expression available to the public, and restricts access to the very fuel that fires the engine of free expression.”
In the Golan v. Holder United States Supreme Court Oral Argument Chief Justice Roberts acknowledges the legitimate concern of the First Amendment argument, that “one day I can perform Shostakovich; Congress does something, the next day I can’t (p. 38).” He went on to provide Jimi Hendrix’s unique version of the National Anthem as an example of a derivative work that would be in jeopardy under the new law. Justice Breyer picks up the argument and states that if, as previously concluded, the likelihood of measurable “Progress of the useful Arts” attained from Section 514 is very small, that then the First Amendment concern outweighs the potential gain in foreign markets.
Future Implications for Music Libraries
If enacted, Section 514 of the URAA will remove large body of work from the public domain and place it under copyright protection. The implications of this law will reach every part of music scholarship, particularly affecting music libraries. Music librarians will now be unable to secure copies of the music of many Twentieth Century composers because it will be available only for rental. Rental fees for copyright protected music are often three or four times as much as the cost of the sheet music of a public domain work. With budgets shrinking across the country and the fees for rental periods exceeding $1,200 in many cases, this alone will prevent libraries from acquiring such works (MLA p. 7). The Amicus Brief for the Music Library Association et al. provides as an example Shostakovich’s Preludes and Fugues Op. 87, which has previously been available to purchase from Dover Publications for about $13.00, and now costs $90. Copies of symphonic works are now often only available in parts, rather than as a whole composite score, which makes analytical study extremely difficult. These staples of Twentieth Century music are vital, not only to music scholarship, but to the furthering of musical evolution, creation and progression.