Following Golan Arguments, Experts Define Public Domain, ‘Limited Times'

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By Tamlin H. Bason

Just hours after fielding questions from eight Supreme Court justices over the merits of his client's arguments, Anthony Falzone, counsel for the petitioners in a case testing the constitutionality of a law that granted copyright protection to certain foreign works that had previously been in the public domain, sparred with other panelists over what precisely is the public domain.

Although seemingly simple, the answer to that question, which was asked by Justice Anthony M. Kennedy during oral arguments before the U.S. Supreme Court on Oct. 5 (Golan v. Holder, U.S., No. 10-545, argued 10/5/11), appears to be both difficult, and subject to differing interpretations.

The answer is also an important one, and was hotly debated during the post-argument panel discussion which was held at the American University Washington College of Law and co-sponsored by the school's Program on Information Justice and Intellectual Property.

To Falzone, the public domain is hallowed ground. The public domain "is the fulfillment of the promise that the Copyright Clause" will promote arts and sciences, Falzone said.

Without the public domain, the requirement that the Copyright Clause be used "[t]o promote the progress of science and useful arts" would be meaningless, Falzone argued. The progress is achieved by allowing works to enter the public domain after “limited times” of protection that are established by Congress, Falzone said. The “limited time” language thus becomes essential, Falzone said.

"Limited times is the mechanism that ensures that copyrights will in fact promote progress," Falzone said. "It tells Congress that it has to pick a date that marks the end of protection where we all know that we can use [a work] freely," Falzone said. "We can distribute it, we can adapt it, we can build on it. That is the point at which everybody is free to put these works to their highest possible service in furtherance of the values of the preamble—the promotion and progress" of arts and sciences, he said.

Accordingly, once a work enters the public domain after a limited time—and Falzone argued that zero was the operative limited time for the works that became protected under the Copyright Act's Section disputed 514—it cannot later be yanked from the public domain and protected by copyright laws.

Once a work is in the public domain, “it's ours, and that is why it can't be subject to revocation because we don't know whether it is ours or not if Congress is always free to change its mind,” Falzone said.

"The public domain that [Falzone] recognizes is not the public domain that I recognize," David Carson, general counsel for the Copyright Office said. Carson agreed with Falzone that the public domain was "rightly the destination of every work." However, Carson said that the works in the public domain have no special constitutional protection other than the First Amendment protections that were properly weighed by the 10th Circuit when it upheld the statute, Golan v. Holder, 609 F.3d 1076, 95 USPQ2d 1466 (10th Cir. 2010) (119 PTD, 6/23/10).

Limited times is the mechanism that insures that copyrights will in fact promote progress.

Anthony Falzone, counsel for petitioners.

"The public domain is simply the absence of copyright protection: that which is not protected by copyright is in the public domain," Carson said. "I am aware of no case law that says that it is a matter of constitutional law that that cannot change," Carson said.

Carson pointed out Golan was in fact the first case to address the very issue. "We will have an answer in a few months," he said.

What Is a 'Limited Time?'

If the public domain is not some constitutionally protected safe haven—and Carson argued that it was not—then the controlling question in Golan becomes whether Congress had extended copyright protection "for a limited time."

Michael Carroll, the executive director of the university's PJIP program, authored two amicus briefs in opposition to the statute. He wondered what sort of precedent might be established if Congress is permitted to pull works out of the public domain.

Caroll asked: "Will a ruling in favor of upholding the statute give Congress carte blanche to grant copyright in the Bible or in Shakespeare?"

"We probably all agree that if Congress were to extend the term of copyright to life plus 500 then we would all be appalled and would hope and pray that we would find something in the constitution to prevent it," Carson said. "On the other hand, if you read the Eldredcase, I am not sure where we would find it."

Carson was referencing Eldred v. Ashcroft, 535 U.S. 185, 65 USPQ2d 1225 (2003) (11 PTD, 01/16/03), which upheld as constitutional under the limited times restriction the Sonny Bono Copyright Term Extension Act of 1998.

Falzone, however, argued that Eldredwas irrelevant to this case because in Eldred the time extension was just that: an "extension" of a time period that had yet to run its course. In this case, Congress did not extend, but rather revived copyrights for works whose copyright had already lapsed, Falzone said.

Falzone's argument is grounded in his assertion that Congress did in fact set a limited time for the works in question. Falzone argued that when Congress enacted the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, 2860, it made an affirmative determination to only recognize those foreign copyrights covering works that were not already in the public domain under U.S. law. In doing so, Falzone said that Congress applied a "zero term" to all other foreign works—including those at issue in Golan. The zero term was a "limited time" in accordance with the Copyright Clause.

"The real problem with the limited time theory that the government advances is that there really is no limit," Falzone said. He said that the government's power to extend copyright protection, as recognized in Eldred, coupled with the government's asserted power to reach back and grant copyright protection to works in the public domain, effectively eviscerates the “limited times” language of the Copyright Clause.

If that is the case, Falzone wondered “Why put the language in the Constitution? What does ‘limited times' stop Congress from doing? I assume they didn't put it in there for no reason whatsoever,” Falzone said.

"It may be that it stops Congress from giving perpetual copyright," Carson said. "It is conceivable that it does nothing more than that. I hope that that is not true, but I don't know where you draw the line short of that."

Christopher Mohrof Meyer, Klipper & Mohr, Washington, D.C., said the Shakespeare hypothetical "is a fascinating law school question, but it really isn't anything more than that."

Mohr, who authored an amici brief for the American Society of Composers, Authors and Publishers in support of the statute, pointed out that Shakespeare was not an issue. Rather, Mohr said at issue here are works that never received any protection that were granted copyright in order for the U.S. to comply with its treaty obligations. Against this backdrop, the court will likely conclude that Congress' actions were constitutional, Mohr said.

Statute Likely to Be Upheld?

Roger E. Schechter, a law professor at George Washington University, predicted that the court would rely on Eldred to uphold the constitutionality of the statute.

"Given the deference the court showed to congressional judgments in the Eldred case, it seems unlikely the court will overturn the statute at issue in Golan," Schechter told BNA. "They will likely find that the provisions of the law that allow 'reliance parties' to continue to make some limited use of materials with restored copyrights represent a sufficient accommodation of First Amendment interests. This seems especially likely because a contrary finding would throw our international copyright relations into considerable disarray."

Neil Smith of Ropers Majeski Kohn & Bentley, San Francisco, noted how Justice Ruth J. Bader Ginsburg seemed to reject Falzone's argument that Congress had set a "zero" term limit. Instead, Justice Ginsburg suggested that the works in issue simply never got any protection.

"Certainly the distinction between clearly expired and restored copyrights, versus as Justice Ginsburg notes, situations like here where Congress never gave them copyrights, is major, and likely determinative of votes," Smith told BNA.

By Tamlin H. Bason

Roger E. Schechter and Neil Smith are members of this publication's advisory board.