U.S. Supreme Court will settle recopyright law debate

The U.S. Supreme Court has admitted a petition for writ of certiorari filed by a music professor of University of Denver, who has challenged a 1994 recopyright law that removed thousands of foreign works from the public domain and gave them copyright protection.

Lawrence Golan, who conducts several small orchestras, says it has become difficult for him to perform foreign compositions as the copyright protection has made them too expensive.

The recopyright law was enacted to help the United States comply with international treaties protecting the copyrights of American works. Some of the works taken out of the public domain include compositions by Sergei Prokofiev, Dmitri Shostakovich and Igor Stravinsky; films by Alfred Hitchcock and Federico Fellini; books by C.S. Lewis, Virginia Woolf and H.G. Wells; and artwork by M.C. Escher and Picasso, including Picasso's masterpiece Guernica.

The two most important questions raised in the petition are whether the Progress Clause of the U.S. Constitution prohibits the Congress from taking works out of the public domain and whether the 1994 recopyright law violates the First Amendment rights of those who performed, adapted, restored and distributed the affected works.

The Progress Clause confers upon Congress the 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 First Amendment provides, in pertinent part, that Congress shall make no law...abridging the freedom of speech, or of the press...

The federal government has requested the apex court to dismiss the case Golan, et al., v. Holder (Attorney General), et al. (10-545) as it feels that the recopyright law is necessary to comply with an international treaty (viz. the Uruguay Round Agreements Act) that protects the copyrights of American works in foreign countries.

The issue was raised in 2001 when Golan and several others sued the government for recopyrighting certain works by foreign artists. The District Court had ruled in favor of Golan but the 10th Circuit Court of Appeals has supported the government's argument reversing the lower court's decision.

And now the apex court has to pronounce its stand in the matter.

The government is confident that the apex court will rule in its favor. But Golan is not fighting the battle alone. Joining him in the fight are educators, performers, film archivists and motion picture distributors. They are being represented by lawyers from Stanford Law School's Fair Use Project (FUP) and from Denver-based civil litigation law firm Wheeler Trigg O'Donnell.

I'm thrilled the Supreme Court took the case, said FUP Executive Director Anthony Falzone, who is counsel of record for the petitioners. This statute throws into question one of the most basic premises of intellectual property: once a work of authorship is placed in the Public Domain, it belongs to the public, and remains the property of the public - free for anyone to use for any purpose. That principle was respected for more than 200 years, because it represents a critical limit on the intellectual property 'monopoly' the Framers authorized. What Congress did here represents a huge departure from those basic principles with substantial constitutional ramifications.

The Supreme Court will hear the matter this fall.