Congress is master of the public domain

Yevgeny Shrago

While the Internet came together on Wednesday to protest Congressional consideration of the Stop Online Piracy Act in a recognition by citizens that intellectual property infrastructure matters, the Supreme Court struck a quieter, if still devastating blow against an open, vibrant public discourse in its latest IP opinion, Golan v. Holder.  While Golan seems to deal with a totally esoteric question involving treaty law, First Amendment rights and the historical understanding of the Copyright Clause, the ultimate upshot is that the Constitution provides basically no protections for the public domain.

Golan deals with the enforcement of the principal international copyright treaty, the Berne Convention.  The United States did not join the Convention until 1989 and therefore, many foreign works that were copyright protected in Berne signatories were in the United States public domain.  In 1994, the United States, under threat of WTO sanction, granted copyrights on all these works. Naturally, artists that had been using those works (such as orchestras), protested and brought suit, alleging that the Berne Convention violated the Copyright Clause and the First Amendment. After years of litigation, including a victory on First Amendment grounds in the Tenth Circuit, the case finally reached the Supreme Court, which reversed and upheld the United States government on all grounds.

This decision is probably technically correct: under Oliver Wendell Holmes’s construction of the treaty power in Missouri v. Holland, Congress has the ability to pass legislation to enforce non-self executing treaties, even when the Constitution gives no other hook.  Laws pulling foreign works out of the public domain are necessary to preserve comity among nations.  As long as the treaty doesn’t lead to a violation of the Bill of Rights (which the court held that it didn’t, and we all know that this court is scrupulous in its protection of commercial speech rights), the law should be upheld.

Unfortunately, the Court did not rest its decision on such narrow grounds. Instead, the Court found that the Copyright Clause of the Constitution permitted Congress to pull these works out of the public domain. According to the Court, the clause’s statement that Congress may pass laws “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;” isn’t an instrumental requirement, but merely vests in Congress the power to build a larger IP regime.  Justice Breyer and Alito dissented, pointing out that there didn’t seem to be any way that progress would be encouraged by pulling works out of the public domain: new works are already copyrighted and the old works have already been made. The result is a defeat for plain language.

What’s more disturbing are the larger implications behind this decision.  By abdicating any limits that the Copyright Clause places on Congress’s ability to create intellectual property regimes, the Court has left the public domain defenseless. Works that an author releases into the public domain can be lobbied back under copyright by his cloying heirs and copyrights that lapsed shortly before another copyright extension bill passed can be retroactively restored.  SOPA adherents complain that the creative energies of artists are being stifled by copyright violations, but the major lobbying forces don’t shed a tear for all the artists that now must nervously approach works in the public domain for fear that with a stroke of the pen, Congress will return any of the profitable ones to copyright. Since Wikipedia has tremendous stake in public domain texts, hopefully any Congressional moves in this direction will meet similar scrutiny and protest, but a piecemeal reappropriation will still be devastating to individual livelihoods.

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