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If You Pay Congress Enough, They’ll Reinstate Your Copyright! (And the Supreme Court Says They Can)

January 24, 2012

The Supreme Court recently held in Golan v. Holder (summary) that it is acceptable for Congress to restore copyright in a number (potentially millions) of foreign works that have been in the public domain. This decision reflects the general political stance that there is no such thing as too much copyright. Further, it give Congress very broad power to remove works from the public domain however they choose.

The concern that this ruling creates is if a rights holder or former rights holder pushes Congress (i.e. gives them enough money) there is nothing preventing Congress from re-granting or extending copyright protection for as long as they want. Presumably, this could apply to patents too.

In allowing Congress to take old works out of the public domain, this ruling fails to consider copyright policy entirely. It does nothing to promote progress in the sciences and useful arts. Instead, the ruling removes potentially millions of works from the public domain, stifles creativity by preventing derivative works, and limits First Amendment free expression. Yes, in the decision, Justice Ginsberg uses clever wordplay and manages to wiggle around all of these issues. Still, her arguments are transparent, and weak at best.

Copyrights inherently have a freedom of expression aspect to them, in that a creator is allowed to limit expression of their copyrighted works. Once the works enter the public domain, however, the First Amendment allows their distribution, use, and modification. The Constitution provides this limit on free speech to encourage creativity and allow people to profit from their creations. On the other hand, this limitation on free expression must be balanced by limiting the term of protection to allow others to eventually build off this creativity. In Golan, the balance is way off- and likely was not even considered.

Justice Breyer is on the right track in his dissent when he pointed out that the “newness” requirement has always been a necessary part of the granting of intellectual property protection. This newness requirement is offended by reinstating copyright in works already in the public domain. Unfortunately, his argument wasn’t enough to persuade a majority of the Court.

Golan v. Holder is just another step in the continuing trend of enhancing and extending copyrights, to the detriment of the arts, creativity, and the policies that copyright law seeks to promote. The ruling further opens the door for abuse of the copyright system by rights holders, as well as further more substantial limitations of the public domain and free expression.

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