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Supremes: Congress can extend copyright terms if it wants to

Even if this removes works from the public domain

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The US Supreme Court has rejected a case that argued that works whose copyright terms have once expired should remain in the public domain, even if the term of copyright is subsequently extended to cover them again.

This has become a familiar sight in recent years. As copyright terms have been extended, works whose copyright had expired for a time found themselves removed from the public domain by extended terms; most famously, perhaps, James Joyce's seminal work Ulysses.

This case, filed in 2001 by a University of Denver music professor, contested Congress' right to place such works back in copyright. It treads similar ground to Professor Lawrence Lessig's previous failure to make the argument stick in the Eldred case before the Supremes in 2003. Lessig was contesting the CTEA, or Copyright Term Extension Act. This time, it was the United States' 1989 signature to the Berne Convention that was being contested.

Joining Berne gave US authors reciprocal rights, but it also obliged the US to harmonise copyright terms with treaty members - and in some cases, that entailed an extension to the term. The US was a reluctant signatory to Berne. As the Supremes note, Congress 'punted' on the the issue of giving foreign public domain works retrospective protection, and was dragged kicking and cussing to the table by the Uruguay trade round in 1994.

Professor Golan argued that by formally complying with Berne Congress had exceeded its authority. This led to an argument about what copyright is actually for - a question that invariably produces strikingly different interpretations.

"The statute before us does not encourage anyone to produce a single new work," Justice Breyer argued. "By definition, it bestows monetary rewards only on owners of old works - works that have already been created and already are in the American public domain. At the same time, the stat­ute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions."

Breyer also pointed to a genuine harm - financial costs to non-profit orchestras.

But the Court majority disagreed. The fact that composers such as Copland were under copyright hardly prevented the American public from enjoying them, they point out.

"In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once disfavored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of perpetual copyrights," the majority decreed. The justices added that Congress had added copyright exclusivity many times before.

The Court rejected Golan 6-2. You can read the opinion here. ®

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