[JPL] Supreme Court rules Congress can re-copyright public domain works

Dr. Jazz drjazz at drjazz.com
Fri Jan 20 14:26:28 EST 2012

Congress may take books, musical compositions and other works out of the 
public domain, where they can be freely used and adapted, and grant them 
copyright status again, the Supreme Court ruled Wednesday.

In a 6-2 ruling, the court ruled that just because material enters the 
public domain, it is not "territory that works may never exit 

The top court was ruling on a petition by a group of orchestra 
conductors, educators, performers, publishers and film archivists who 
urged the justices to reverse an appellate court that ruled against the 
group, which has relied on artistic works in the public domain for their 

They claimed that re-copyrighting public works would breach the speech 
rights of those who are now using those works without needing a license. 
There are millions of decades-old works at issue. Some of the well-known 
ones include H.G. Wells' /Things to Come/; Fritz Lang's /Metropolis/ and 
the musical compositions of Igor Fyodorovich Stravinsky.

The court, however, was sympathetic to the plaintiffs' argument. Writing 
for the majority, Justice Ruth Ginsburg said "some restriction on 
expression is the inherent and intended effect of every grant of 
copyright." But the top court, with Justice Elena Kagan recused, said 
Congress' move to re-copyright the works to comport with an 
international treaty was more important.

For a variety of reasons, the works at issue, which are foreign and 
produced decades ago, became part of the public domain in the United 
States but were still copyrighted overseas. In 1994, Congress adopted 
legislation to move the works back into copyright, so U.S. policy would 
comport with an international copyright treaty known as the Berne 
Convention <http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html>.

In dissent, Justices Stephen Breyer and Samuel Alito said the 
legislation goes against the theory of copyright and "does not encourage 
anyone to produce a single new work." Copyright, they noted, was part of 
the Constitution to promote the arts and sciences.

The legislation, Breyer wrote, "bestows monetary rewards only on owners 
of old works 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, including 
films, works of art, innumerable photographs, and, of course, books --- 
books that (in the absence of the statute) would assume their rightful 
places in computer-accessible databases, spreading knowledge throughout 
the world."

Anthony Falzone, executive director of the Fair Use Project at Stanford 
University and a plaintiff's lawyer in the case, called the decision 
"unfortunate" and said it "suggests Congress is not required to pay 
particularly close attention to the interests of the public when it 
passes copyright laws."

The majority, however, rebuffed charges that a decision in favor of 
Congress' move would amount to affording lawmakers the right to 
legislate perpetual copyright terms.

"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," Ginsburg wrote.

It's not the first time the Supreme Court has approved the extension of 
copyrights. The last time was in 2002, when it upheld Congress' move to 
extend copyright <http://www.oyez.org/cases/2000-2009/2002/2002_01_618> 
from the life of an author plus 50 years after death to 70 years after 

The lead plaintiff in the case, Lawrence Golan, told the high court that 
it will not longer be able to perform Prokofiev's /Classical Symphony/ 
and /Peter and the Wolf,/ or Shostakovich's /Symphony 14, Cello Concerto 
/because of licensing fees.

Supreme Court:  

Dr. Jazz
Dr. Jazz Operations
24270 Eastwood
Oak Park, MI  48237
(248) 542-7888
SKYPE:  drjazz99

More information about the jazzproglist mailing list