By Christine Haight Farley, a law professor at American University Washington College of Law
The Supreme Court handed down its decision in Golan v. Holder yesterday. The case could have been the antidote to its 2003 decision in Eldred v. Ashcroft. It could have vindicated the defenders of the public domain. It could have breathed life into the Copyright Clause in the Constitution. But it didn’t. Instead it hewed so closely to the Eldred decision that it will take wily law professors countless hours of postmortem to remind themselves of why they had any optimism in the first place.
Like Eldred, Golan involved an act of Congress that reduced the public domain. In Eldred, the Court rejected a constitutional challenge to the Copyright Term Extension Act, which added 20 years to the term of copyrights. In Golan, the court rejected a similar challenge to § 514 of the Copyright Act, which restored the copyrights of foreign works that had been in the public domain in this country apparently in order to implement our obligations under the WTO TRIPS Agreement. As a result, tens of thousands of works can no longer be freely used. Since many of these works are quite old—some created as early as the 1920s — authors’ permission to use them may be impossible to obtain because simply locating the author may be impossible. In any event, Mr. Golan will no longer be able to afford Stravinsky’s symphonies as he conducts the University of Denver’s orchestra.
The first eleven pages of the opinion are devoted to an explanation of our international obligations under copyright treaties. Got it: bad policy or not, we had no choice. Obviously, the opinion was not authored by Justice Scalia.