March 7, 2011 | By Julie Samuels

Supreme Court to Hear Challenge to Law That Removes Works from the Public Domain

Today the Supreme Court agreed to hear an important case about whether Congress has the power to "restore" copyright protection to works that already exist in the public domain. To be clear, for more than 200 years the law has been settled – once a work was in the public domain, there it remained, and downstream users could feel free to use, store, or share it any way they saw fit. Now Congress, in enacting Section 514 of the Uruguay Round Agreements Act, is changing the game by granting copyright protection to works by foreign authors that, for a variety of reasons, were no longer protected by copyright (for example, if an author had failed to renew her copyright). This means that many works already in the public domain – Peter and the Wolf, literature by Maxim Gorky, pieces by Picasso, and music by Stravinski, for example – that have been used and performed countless times would now be subject to copyright protection. Those who have used the works could now be required to pay hefty license fees, and – even worse – if they can’t afford those fees, cease use of the works.

Copyright laws create a balance between rights holders and those who make use of, collect, and enjoy creative works. A robust and static public domain is a necessary element of that balance. With Section 514, Congress upended the settled expectations of secondary users and collectors of public domain works. This is why Lawrence Golan, a symphony conductor, along with other artists, challenged the law and why EFF – on behalf of the Internet Archive – submitted a brief encouraging the Supreme Court to hear Mr. Golan's challenge and rule that the government can never take works that belong to the public out of the public domain.

In their briefs, both Mr. Golan and the Internet Archive pointed out that allowing Congress to remove works from the public domain inserts potentially paralyzing uncertainty to the system and harms people’s First Amendment rights to receive and share information. These concerns are even more pronounced now in light of technologies that make sharing and storage more accessible, and allow important institutions like the Internet Archive to thrive.

We are pleased that the Supreme Court has agreed to consider these important issues, and hope that this case will result in a more stable and vibrant public domain. The Court will likely hear oral arguments this fall and EFF will likely file another brief supporting Golan.

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