Home » 5:18 pm Entries posted on “April, 2011”

How the Supreme Court Case Golan v. Holder Challenges Copyrights

This particular case intrigued me because I had no idea copyright rules included foreign music works. And just because we as fiction and non-fiction writers think this case does not apply to us, we find that the rules do apply to us as well as to educators, performers, publishers and movie distributors. Earlier in March, last month, David L. Hudson Jr., who is a First Amendment Scholar, wrote an analysis of the case Golan v. Holder for the website firstamendmentcenter.org. In it he explained better than most of the sources I found.

This case gives the U.S. Supreme Court “a chance to clarify the relationship between copyright law and the First Amendment”, quoting from Hudson, because it “features challenges to a federal copyright law that removed some foreign works from the public domain.”

The background of the Golan case: In 1994 Congress passed into law the Uruguay Round Agreements Act to bring the U.S. into compliance with international copyright treaties. In joining other nations in this treaty, the purpose was to protect the interests of American copyright holders abroad. The effect was that it protected some foreign works that had long been in the public domain by putting them back under copyright protection. The result is that it forces orchestra conductors to pay high licensing fees to use those works. That’s how copyright law works: you get paid if your work is used by someone else.

This case has been around for 10 years. So if we as writers think we can sue and then be satisfied quickly, think again!

Again quoting Hudson, “In 2001, Golan and other conductors, along with educators, performers, publishers and movie distributors, sued in federal court claiming that the law had harmed them. Removing thousands of foreign works from the public domain in the United States, they argue, inhibits their artistic expression. According to the petitioners, works that now require licensing fees include ‘symphonies by Prokofiev, Stravinsky and Shostakovich; books by C. S. Lewis, Virginia Wolff and H.G. Wells; films by Federico Fellini, Alfred Hitchcock and Jean Renoir; and artwork by M.C. Escher and Picasso.’”

Briefly, Hudson gave “two issues that are identified in the legal papers before the Supreme Court.”

First—did Congress exceed its powers under the copyright clause by removing materials from the public domain? To wit: “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Second—the First Amendment question: “Golan and the other petitioners contend that the law violates the First Amendment because it deprives them of access to expressive works and infringes on their ability to produce their own works.”

Hudson goes on to say that traditionally, copyright laws have been immune from First Amendment challenges because copyright [law] “already has built-in free speech safeguards” such as “’fair use’, or the right of others to present excerpts of creators’ works, and the principle that ideas cannot be copyrighted, only the ways in which creators express them.”

This case propelled the issues to other cases known as Eldred v. Ashcroft (2003), Golan v. Gonzalez (2007), and another, more recent, certiorari petition known as Reed Elsevier v. Pogrebin. The latter involves copyright infringement due to use of electronic databases and online publishing.

We authors need to stay informed of the progress of copyright cases as we move forward into the next decade.

Can you think of an international copyright infringement that has been in dispute for a long time?


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