The US Supreme Court is set to review the constitutionality of restoring copyrights in foreign works, which is likely to affect the status of many famous works. The Court recently granted the petition for a writ of certiorari filed by lawyers from Stanford Law School's Fair Use Project (FUP) and Wheeler Trigg O'Donnell LLP. Following this, it will review the constitutionality of a federal statute that has removed thousands of foreign works from the public domain and placed them under copyright protection.
The case is seen to present a two-pronged constitutional challenge to the 1994 law passed by Congress - an amendment to the Copyright Act, the Uruguay Round Agreements Act (URAA). The case will test whether Congress has the authority to remove works from the public domain under the "Progress Clause"; and whether the 1994 law violates the First Amendment rights of those who performed, adapted, restored and distributed works which had previously been in the public domain. These works include symphonies by Sergei Prokofiev, Igor Stravinsky and Dmitri Shostakovich; books by C.S. Lewis, Virginia Woolf and H.G. Wells; films by Federico Fellini, Alfred Hitchcock and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso, including Picasso's masterpiece Guernica.
The FUP filed the petition in October 2010 on behalf of orchestra conductors, educators, performers, film archivists and motion picture distributors who relied for years on the free availability of works in the public domain, which they performed, adapted, restored and distributed. The URAA had removed these works and many others from the public domain and placed them under copyright protection in conjunction with the implementation of intellectual property treaties. That amendment affected the copyright status of thousands of works by foreign authors that had been in the public domain in the US for decades.
Petitioners Lawrence Golan, Estate of Richard Kapp, S.A. Publishing Co., Inc., Symphony of the Canyons, Ron Hall and John McDonough originally filed suit in 2001, contending that in enacting the URAA, Congress exceeded its Article I power and violated the First Amendment. A lower court rejected both claims and dismissed the case in 2005. In a 2007 decision, the Tenth Circuit revived the petitioners' First Amendment challenge. Following that decision, the same lower court held the URAA was unconstitutional under the First Amendment. The Tenth Circuit reversed that decision last summer, holding the URAA did not violate the First Amendment. Now, the Supreme Court has agreed to review that decision.
The specific constitutional provisions at issue in the case are the Progress Clause (Article I, Section 8, Clause 8) and the First Amendment. The Progress Clause - sometimes called the "Copyright Clause" - gives Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Petitioners contend that removing material from the public domain violates the "limited times" restriction and the URAA as enacted does not "promote the Progress of Science and the useful Arts." Petitioners contend the URAA violates the First Amendment because it is not narrowly tailored to any important government interest.
The FUP was founded in 2006 as part of the Stanford Law School Center for Internet and Society. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom. The Project's homepage is at: http://cyberlaw.stanford.edu/taxonomy/term/374.
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