This is a summary of the Golan et al v Holder, Attorney General, et al case in the United States Supreme Court. Visitors to this blog (Australia-based) may find this review of events interesting.
On 18 January the US Supreme Court brought down a 6:2 judgment confirming a 1994 legislative amendment which restored to copyright foreign works which had fallen into the public domain.
The petitioners who objected to the restoration of copyright to these works were conductors, performers, publishers and others who object to the amendment which overturns their earlier free access to these works.
The petitioners challenged the power of the US Congress to restore to copyright works which had fallen into the public domain.
The representatives of foreign copyright owners submitted an amicus curiae brief for consideration by the US Supreme Court as to why the enactment is valid.
The 1994 legislative amendment was required to bring US Copyright Law into alignment with requirements of the international treaty relating to Copyright, the Berne Convention. This holds that formalities, such as the notice, registration, renewal and manufacturing requirements which were part of earlier US law must not be a prerequisite to copyright, which is automatically granted on the creation of an original work. Many foreign works were out of copyright in the US because these formalities were so burdensome. Copyright protection in Berne member countries (currently 164 countries) must be extended to the copyright owners from other member countries on the same terms as it applies to local rights owners. This principle of ‘National Treatment’ is at the core of the Berne Convention, and guards against any member nation providing their own authors with copyright protection that would effectively disadvantage foreign rights owners.
The amicus curiae brief submitted by foreign copyright owner representatives is a comprehensive history of US copyright law in relation to foreign rights owners. It tells of a highly protectionist approach to copyright lobbied for by US interests, and identified as unfair to foreign rights owners more than a century and a half ago, when US Senator Jonathan Chace likened the US stance as akin to piracy, calling the US ‘the Barbary Coast of literature’, and ‘the buccaneers of books’. The effect of affording no copyright to British authors in the early 19th Century was not just the ability of US publishers to print British works without payment to copyright owners, but was noted to have a negative impact on US authors seeking publication in the US as to publish them would obviously have been more expensive than using their UK counterparts’ works for free. That impact was compounded by UK publishers who were reluctant to publish US authors in the UK because of the unfair treatment of UK authors works in the US.
Apart from this history, the brief also lists the instances in the US history when Congress has extended copyright to works which have previously been in the Public Domain. These arguments were accepted by the US Supreme Court in its recent ruling.
An interesting side-note on the issues brought to life by this case: while many copyright owner interests have insisted on the central tenet of Berne that there not be formalities with which creators must comply before they enjoy copyright in their works, there is a growing momentum to revisit this area. The advent of the internet and digital trade of works has made some suggest that a register/database of works and rights ownership details will be critical to the development of successful online trade in content which would benefit rights owners and consumers and strike the balance of interests which is at the core of copyright. Any such amendment would have to consider the interests of creators with limited resources and ensure that technological disadvantage did not result in loss of legitimate copyright interests.
– Post by Zoe Rodriguez, Copyright Agency