The U.S. Supreme Court has agreed to hear an important copyright case that will impact the future of many early-to-mid 20th century masterpieces, including works by H.G. Wells, Fritz Lang, Frederico Fellini, and Igor Stravinsky. The issue in the case concerns nearly 125 years of international cooperation on the copyright front. A coming Supreme Court ruling could throw many works now considered copyrighted into the public domain, thus upsetting the status quo, and potentially triggering an international backlash.
In 1887, at the Berne Convention for the Protection of Literary and Artistic Works, a host of European countries entered into a path-breaking treaty that established minimum levels of copyright protection.
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One hundred years later, in 1988, the U.S. joined Berne, and in 1994, America led a new international treaty signed in Uruguay that harmonized many intellectual property laws around the globe and set up an international dispute resolution mechanism at the World Trade Organization.
The move to international harmony wasn’t without consequence, however.
Before the U.S. entered these international treaties, many early- to mid-20th century works were in the public domain. Because the Berne Treaty retroactively provided protection for works, some works such as the 1927 film Metropolis were moved out of the public domain and its owners got to enjoy a new extended copyrighted term.
In 2001, an orchestral conductor named Lawrence Golan challenged this arrangement. He was joined by educators, performers, publishers, film archivists, and some motion picture distributors who relied on artistic works in the public domain for their livelihoods. One of the plaintiffs, for example, wished to create a derivative work based on compositions by Dmitri Shostakovich, works that were in the public domain before the 1990s but became copyrighted thanks to international treaties.
The case moved up and down the Tenth Circuit this past decade. At one point, a district court in Colorado ruled the the Uruguay Round Agreements Act “altered the traditional contours of copyright protection” and violated the First Amendment, but the decision was overturned last June by the Tenth Circuit Court of Appeals, which agreed with the U.S. government that the treaties were necessary so as to obtain reciprocal legal protections for American copyright holders abroad.
That decision was appealed to the U.S. Supreme Court, which has agreed to review the case. (Here’s the 10th Circuit decision, cert petition, and the government’s opposition papers.)
The plaintiffs, led by Anthony Falzone at Stanford Law, argue that the U.S. government took thousands upon thousands of works out of the public domain and into the control of private foreign owners, and abridged the free speech rights of the American public. The plaintiffs also argue that by ratifying the treaty, Congress overstepped its constitutional obligations to “promote the progress of science and useful arts.”
However, if the Supreme Court agrees with the plaintiffs, there could be consequences. Foreign countries could potentially amend their own copyright rules regarding U.S. works, impose trade sanctions, or initiate proceedings against the U.S. for violating agreed-upon intellectual property treaties.
