A recent decision in the 10th Circuit U.S. Court of Appeals may have provided a reprieve for artists, musical conductors, and educators affected by two federal statutes passed in the 1990s which extended copyright protection to works formerly in the public domain and resulted in hefty rental fees.
In Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007), the 10th Circuit court ruled on September 4 that Section 514 of the Uruguay Round Agreements Act (URAA) may violate the First Amendment by removing material from the public domain and restoring copyright protections.
Judge Robert H. Henry’s majority opinion stated that First Amendment scrutiny was warranted on remand because the applicable provision of the URAA “has altered the traditional contours of copyright protection in a manner that implicates plaintiffs’ right to free expression.”
The plaintiffs, including orchestra conductors, educators, performers, publishers, and film archivists, challenged the constitutionality of the Copyright Term Extension Act (CTEA), Pub. L. No. 105-298, sectionsection 102 (b) and (d), amending 17 U.S.C. sectionsection 302, 304, and the URAA, Pub. L. No. 103-465, codified at 17 U.S.C. sectionsection 104A, 109 because provisions of these laws, by restoring copyright protections for foreign artists, will now require them to pay royalties to use material formerly in the public domain. Such costs, according to the majority opinion, are “prohibitive.”
The URAA implements an international agreement on copyright dating from 1886, the Berne Convention for the Protection of Literary and Artistic Works, which requires member countries to grant the same copyright protections to foreign artists that they do to their own authors. In order to comply with Section 514 of the URAA, Congress has removed some artistic works from the public domain and restored copyright protections.
The district court originally dismissed the plaintiffs’ CTEA claim and granted summary judgment on their URAA claim, which asserted that the URAA exceeded the scope of congressional power under the Copyright Clause of Article I, Section 8 of the U.S. Constitution. This Clause is the basis of federal patent and copyright laws and gives Congress the power to secure for authors and inventors the exclusive right to their works for “limited times.”
In its ruling, the district court relied on a Supreme Court case that affirmed Congress’ extension of copyright under the CTEA. In Eldred v. Ashcroft, 537 U.S. 186 (2003), the Court also determined that the First Amendment may restrict Congress’ power under the Copyright Clause in some circumstances. (See “Recent Developments in Copyright Law: Copyright Term Extension Upheld as Constitutional” in the Winter 2003 issue of the Silha Bulletin). The First Amendment makes a distinction between ideas, which cannot be copyrighted, and expressions, which can. This is known as the “idea/expression dichotomy.” It also allows copyrighted material to be used for teaching purposes, news reporting, and criticism, which are considered “fair use.”
Beyond these two safeguards, the Court in Eldred articulated a broad test for determining when copyright law should trigger First Amendment review by stating that this scrutiny is not appropriate when “Congress has not altered the traditional contours of copyright protection.”
In Golan, the 10th Circuit court determined that neither the idea/expression dichotomy, nor the fair use defense would be adequate to protect the public’s free speech interest in the material being removed from the public domain. Those doctrines, the majority opinion asserted, govern material from the time a work is copyrighted to the time that a copyright expires. Both doctrines attempt to address the tension between the public interest and the author’s interest in protecting his work. Golan, on the other hand, arises when copyrighted material has already become part of the public domain. At that time, the author possesses no more claim to the work than a member of the public does.
The plaintiffs in Golan relied on the “traditional contours” test from Eldred in framing their argument for First Amendment review. According to the blog written by plaintiffs’ attorney and Stanford University Law Professor Lawrence Lessig, the plaintiffs argued that Congress had departed from the “traditional contours of copyright protection” by removing material from the public domain and restoring copyright protections. Lessig’s blog is available at http://www.lessig.org/blog/.
The 10th Circuit held that First Amendment scrutiny was warranted on remand. In its instructions, the appeals court stated that the district court must determine whether Section 514 of the URAA is content-based or content-neutral. In order to uphold a content-based restriction, the government must assert a compelling interest and demonstrate that no less restrictive means could achieve it. A content-neutral interest must be narrowly tailored to achieve a significant government interest.
Lessig called the ruling a “fantastic victory.” He told The Associated Press in an article published Sept. 5, 2007, “We’re confident that on remand we will convince the district court that Congress went too far in this case.”
- Amba Datta, Silha Research Assistant