|Keystone Pictures/Zuma Press
Picasso is among the foreign artists, writers and composers whose works get U.S. copyright protection
under a law upheld Wednesday.
how in the hell do you take works out of the public domain when they are already used fairly and then prosecute people for it?
(WSJ By BRENT KENDALL And JESS BRAVIN) WASHINGTON—The Supreme Court on Wednesday upheld a 1994 law granting copyright protection to a large number of foreign works that had been freely available in the public domain. The ruling was a victory for the movie, music and publishing industries, which argued that granting copyright protections for the foreign works was an important step in securing reciprocal overseas rights for U.S. works. The decision means some musicians and other artists will have to keep paying to use the now-copyrighted foreign works.
Congress enacted the measure to bring the U.S. in compliance with the Berne Convention, an 1886 treaty providing for international recognition of copyrights. The court, by a 6-2 vote, said Congress acted within its powers in granting the protections.
“Congress determined that U.S. interests were best served by our full participation in the dominant system of international copyright protection,” Justice Ruth Bader Ginsburg wrote for the court.
The ruling defeated a challenge by a group of orchestra conductors, performers, educators and others who argued that Congress exceeded its powers by restricting their ability to perform, share and build upon foreign works that once had been free for use.
The Constitution authorizes Congress to grant copyrights “for limited times.” Challengers argued that authority didn’t include the power to take works out of the public domain. They also said the law violated the First Amendment because removal of the works interfered with their freedom of expression.
Google Inc. was the leading company challenging the law, in an echo of the separate battle in Washington over an Internet piracy bill that pits Google against movie studios. The search company, which didn’t respond to a request for comment, said in court papers that the restored copyrights could affect more than a million books it has scanned through its Google Books Library Project.
The ruling followed others in recent years giving Congress broad discretion over the shape of copyright. In 1998, Congress bowed to entertainment industry wishes by extending existing copyrights by 20 years, so they would last 70 years after the author’s death—to 2036, for instance, for Walt Disney. In a 2003 opinion, also by Justice Ginsburg, the court upheld that extension.
“Today’s ruling demonstrates that the United States fulfills its international copyright obligations and will remain a world leader in protecting creative works,” Fritz Attaway, chief policy adviser for the Motion Picture Association of America, said.
Among the foreign works removed from the public domain were symphonies by Russian composers Sergei Prokofiev and Dmitri Shostakovich, writings by J.R.R. Tolkien and George Orwell, and paintings by Pablo Picasso.
The number of works that qualified for copyright restoration probably numbered in the millions, the U.S. Copyright Office has estimated.
Justice Stephen Breyer, joined by Justice Samuel Alito, dissented from the court’s ruling, saying the law “inhibits an important pre-existing flow of information” and is at odds with the purpose of granting copyrights: to provide incentives for creators to produce new works. Instead, the law “bestows monetary rewards only on owners of old works,” wrote Justice Breyer.
Orchestra conductor Lawrence Golan, the lead plaintiff in the case, said the law has limited the ability of smaller-budget orchestras to perform some popular foreign pieces, such as “Peter and the Wolf,” that used to be free.
Now orchestras, on average, must pay about $800 per performance of Prokofiev’s children’s classic, Mr. Golan said in an interview. “The price of the licensing fees or rental fees for playing these pieces will be cost-prohibitive,” he said.
The 1994 law granted copyrights to foreign works that never received American protection because they were published in countries that previously lacked copyright relations with the U.S. It also restored protections for foreign works that were in the public domain because they hadn’t complied with technical requirements of U.S. copyright law.
Some foreign works were denied U.S. rights for 50 or 60 years, said Eric Schwartz, a former government copyright attorney who negotiated international copyright agreements. “Some of the families of the creators are trying to get back some of the money they were denied,” he said.
Another copyright attorney, Lloyd Jassin, said that taking “a work out of the public domain in the U.S.—in this case a book published abroad between 1923 and 1989—will have an impact. It’s in effect a tax for independent publishers who might have been seeking to publish a work formerly in the public domain. A rich public domain allows for greater access to older works—and at a much lower cost.”
Justice Elena Kagan, who was a Justice Department official during earlier stages of the litigation, did not take part in the case.
The case is Golan v. Holder, 10-545.
—Jeffrey A. Trachtenberg contributed to this article.
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