Court Tosses Challenge to Foreign Copyright Shield

     (CN) – Foreign artists deserve copyright protection from the profitable use of their works by performers and publishers in the United States, the Supreme Court ruled Wednesday.
     The majority opinion upholds a section of the 1994 Uruguay Round Agreements Act, a U.S. law that restored copyright protection to foreign works of art that were previously in the public domain. Since the United States did not join the Berne Convention for the Protection of Literary and Artistic Works for roughly a century after the agreement took effect in 1886, many foreign works spent decades in the U.S. public domain.
     Adoption of Section 514 in 1994 changed the law to require the payment of licensing fees to the copyright holders of any foreign works that U.S. entites could have once sold, performed and distributed for free.
     Unhappy about losing free access to newly protected works, a group of orchestra conductors, musicians and others challenged the constitutionality of the Section 514.
     The challengers claimed that a work can never exit the public domain once it has entered that sphere, under the First Amendment and the copyright and patent clause of the U.S. Constitution.
     Though a Colorado federal judge agreed that the law ran afoul of the First Amendment, the 10th Circuit upheld the law as “content-neutral” in June 2010.
     The Supreme Court accepted the appeal in March 2011, but sided Monday with the U.S. attorney general.
     “Congress determined that exem­plary adherence to Berne would serve the objectives of the copyright clause,” Justice Ruth Bader Ginsburg wrote for a six-member majority. “We have no warrant to reject the ra­tional judgment Congress made.”
     The 32-page opinion notes that Section 514 “does not impose a blanket prohibi­tion on public access” that would, for example, relegate musicians to playing a few bars of a Shostakovich symphony instead of the entire work.
     “But Congress has not put petitioners in this bind,” Ginsburg wrote. “The question here is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to ‘fair use’ of that work. Prokofiev’s ‘Peter and the Wolf’ could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace. This is the same market­place, of course, that exists for the music of Prokofiev’s U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers.
     A dissent authored by Justice Stephen Breyer laments that the copyright protection afforded by section 514 does not encourage the production of new material, which was the Founding Fathers’ intent in drafting the copyright clause.
     “The statute before us … does not encourage anyone to produce a single new work,” according to the 24-page opinion, joined by Justice Samuel Alito. “By definition, it bestows monetary rewards only on owners of old works – works that have already been created and already are 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.”
     “In my view, the Copyright Clause does not authorize Congress to enact this statute,” Breyer wrote.
     Though not broached by the group of petitioners, Breyer also spoke about the effect of section 514 on millions of so-called orphan works, “older and more obscure works with minimal commercial value that have copyright owners who are difficult or impossible to track down.”
     “Unusually high administrative costs threaten to limit severely the distribution and use of those works – works which, despite their characteristic lack of economic value, can prove culturally invaluable,” he wrote.
     “How is a university, a film collector, a musician, a database compiler, or a scholar now to obtain permission to use any such lesser known foreign work previously in the American public domain?”
     The high administrative costs of acquiring this permission might tempt potential users to “‘steal’ or ‘pirate’ works rather than do without,” Breyer noted.
     “And piracy often begets piracy, breeding the destructive habit of taking copyrighted works without paying for them, even where payment is possible,” he wrote. “Such habits ignore the critical role copyright plays in the creation of new works, while reflecting a false belief that new creation appears by magic without thought or hope of compensation.”
     The majority dismissed this argument by noting such “difficulty is hardly peculiar to works restored under §514.”
     “Nor is this a matter appropriate for judicial, as opposed to legislative, resolution,” Ginsburg wrote.
     Justice Elena Kagan took no part in the court’s consideration or decision of the case.

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