In an article on Slashdot discussing this Supreme Court ruling, one commenter theorizes that:
So, with all the other wailing and gnashing of teeth on that thread, I’d like to ask just how much effect this ruling actually has on the legal copyright landscape. What exactly does it do and mean?
So, Mel Gibson has a legitimate claim on William Wallace and the Gospels? Good to know.
Asshole Supreme Court and Congress being Assholes.
To the Hon. Ruth Bader Ginsberg, Associate Justice, SCOTUS:
Notice is hereby given of intent to establish copyright over the United States Constitution. The logic of this action is that the Constitution is the foundation on which the United States Government is founded. Its copyright status and use cannot therefore be controlled by any one governmental body, including the Congress and your honorable Court. It is the common property of the People. Under the doctrine set forth in Golan v. Holder, it becomes necessary to preempt claims to its copyright by governmental bodies by forthright action in the public interest. In the absence of action by others, I am asserting that copyright in trust for the public.
A committee will be established to determine on what basis the Federal and State courts will be permitted to quote from it. Pending establishment of that committee, requests to use the Constitution may be made to me at this e-mail address.
Your copperation and the favor of a rapid response are anticipated. In the interim, I recommend for your reading “Melancholy Elephants”, by Spider Robinson.
Slashdot explicitly mentions Peter and the Wolf. I’m crushed!
Years ago the Max Headroom tv show satirically depicted a hyper-commercialized world. At the time I started to write a fanfic called “How the Grinch Sold Christmas”, about how the entirety of the world public domain was being auctioned off and Omnicorp was trying to sew up the rights to everything Christmas-related (their chief rival? The Vatican). But I didn’t finish because it seemed too implausible even as satire. :dubious: Now that everything can be digitized, works can continue to be propagated (at a profit) by corporations that own them forever, so copyright will eventually never expire at all, as long as a work can make money.
In a very quickie reading of the opinion, it seems to be saying this: for some period of time, the US terms and conditions for copyright were different than the internationally-agreed Berne Convention terms and conditions. So some things went “Public Domain” in the USA that did not go Public Domain in, for instance, the EU. However in 1994 the US entered a trade agreement which included a commitment to abide by the Berne Convention, under penalty of WTO action, so US copyright laws have since been amended on various ocassions to bring them into compliance and one of those amendments was that Congress legislated to retroactively return to proprietary status those things that had gone PD in the USA but were not so in their legal “home country” under the Berne Convention. The Court rules that yes, they can do that, they have done it before, bringing the US law into compliance with an international agreement to which the USA is signatory is a function of Congress, and copyright has been extended and expanded before.
Breyer and Alito dissented, arguing this is contrary to the purpose of the copyright power as it appears in the Constitution, that is,* a limited-time protection to incentivize new creation*, not a perpetual income assurance (nor license to rights-squat forever to control and prevent publication) for the estates or successor corporations of those holding IP rights or their assigns, and that once the law in the US says you’re in the clear, dammit you should expect to stay in the clear in the US (not quite those words 
). Kagan recused herself.
(Editorial: The Con justices presumably would be expected to favor property rights and enforcing treaties, but OTOH the Lib justices would be only too happy to join if the Cons themselves are saying the US should follow the international norm…)
Uderstandable worry is raise due to the explicit ruling that nothing in the Constitution makes the Public Domain inviolate or irreversible.
However, I’m not convinced as that Slashdot poster stated, that * based on this case* Disney could copyright for themselves all of Grimm, Perrault, Carroll, Andersen, Verne, etc., or of those two most prolific authors and composers of all, Anon. and Trad., just because their interpretation is the most commercially familiar to US audiences, or as Polycarp mentions, that the state or a title-squatter may copyright the statutes and limit their access and use. But the Court missed clarifying if this was not the case, as not being the matter at hand.
The controversy sprang from works of non-US origin that were copyrighted under the Berne Convention all along (e.g. Prokofiev’s Peter and the Wolf*) and had gone PD in the USA because the law here was different at the time, and whether there was a vested right to retain royalty-free public domain use that trumped reciprocal treaty compliance. Treaty compliance, or more bluntly, protection of property interests, won. Seems they ruled based on the presumption that this is to apply where at some point there IS a claimant of Berne Convention copyright that is a creator, their estate or their assigns. The majority decision states that the issue of “orphan” works, where no rights-holder can be identified to seek permission to publish, would be a matter for another piece of legislation.
(* The plaintiffs used it as one of many examples of harm they’d incur, robinson. The Court notes it and observes that ITO there is no undue burden, restriction of speech or “taking” in this, since* Peter and the Wolf* has been widely performed worldwide even where it was under protection, and that by comparison the works of Aaron Copeland, under copyright everywhere all along, are also widely performed.)
Very good analysis. My only nitpick would be to note that both sides were advancing property interests. The question was not whether money should be made from the works at issue, but rather how to divide the money to be made from them.
Only if you mean by “how to divide” whether one group would get paid anything or not. And it was made quite clear that at least some of the plaintiffs would no longer be able to make money on the work since it would cost more to license than people are willing to pay them for a performance.
I’m still wondering about the OP’s claim that this decision would allow someone to copyright someone else’s previous work. I don’t see it.
IMO, this comes down to
If the Berne Convention is a treaty that implies all of the signees should have a copyright expire at the same time, then I don’t see any problem with the decision.
The hypothetical Disney argument would never be taken seriously in a court.
As to what it actually does and what it actually means –
It means that certain creative works that were not given copyright protection in the United States when they were created, because they were created by nasty foreigners, will be treated as it they had been eligible for protection at the time.
This includes works by M. C. Escher, Federico Fellini, Maxim Gorky, Alfred Hitchcock, Fritz Lang, C. S. Lewis, Vladimir Nabokov, Pablo Picasso, Sergei Prokofiev, Dmitri Shostakovich, Alexander Solzhenitsyn, Igor Stravinsky, H. G. Wells, and Virginia Woolf.
Paraphrasing Ginsburg, these works will be given “the same protection as Sondheim.” In other words, even though they were in the public domain up until now, for the rest of their otherwise denied copyright term, they’ll be protected. Granted, this is going to amount to a much tinier term of protection than they would have gotten if they had been protected at the beginning.
Under the statute in question – Section 514 of the Uruguay Round Agreements Act of 1998 – “reliance parties” may be given a period of time in which to sell off their current inventory of what would be otherwise infringing copies before the statute will be enforced against them.
As to what practical effect it will otherwise have on orchestras or publishers or other entities that have made use of such works, it’s not entirely clear. There’s certainly a possibility that some of them will have to pay a little more in terms of royalties in order to, say, perform Peter and the Wolf or something like that, but it’s not clear at this point that such royalties would be debilitating.
Personally, I don’t think it will make much difference at all. After all, as Ginsburg said, all we’re doing is giving Stravinsky (or Prokofiev, in the case of Peter and the Wolf) the same rights as Sondheim. Copyright owners still want people to use their works – that’s how they make money off of them. So we’re not going to suddenly see such high royalty rates that no one is ever going to see a performance of Peter and the Wolf ever again.
I think sometimes the copyright protection is what you say it is until someone stands up for a more reasonable interpretation. I remember getting a music book with Kingston Trio songs in the 1960’s and all of the folk songs – the ones that had been around for ages – claimed the Kingston Trio not only owned the copyright, but Dave Guard et al wrote the music and lyrics as well. It might have intimidated some people, but I doubt that it would hold up in court.
And more recently, I’ve had some of my postings on YouTube challenged (probably by a computer program) as to my ownership. When I pointed out that one song they said was under copyright first appeared in the 1600’s, YouTube said, “Never mind,” and dropped their claim.
That is what we call a “mere question of fact.” It’s not a question of interpretation.
I want to point out that the OP is being rather disingenuous. There is nothing to suggest that Disney has tried or will try anything of the sort.
But beyond that, doesn’t it mean that money must be paid if the work is to be performed in public, even though the performer expects no payment himself/herself? Or do I misunderstand that part of it?
Yes, it means that the copyright holder has the right to authorize any public performance, and such authorization might be conditioned upon payment of royalties, as they already have the right to do in the countries that complied with the Berne Convention a long time ago, and as most other creators already have the right to do here.
This is a situation in which American law failed to provide the same rights to foreign creators that they were already getting in other countries. The only reason this has come up in this manner is because for years the United States (first) declined to join the Berne Convention and (then) took forever to comply with its terms once it did join.
As a result, all those famous creators I listed above were getting rights outside the United States, but they were being freely ripped off here.
The United States finally decided to comply and no small consideration was the fact that other countries were saying – “look you promised to protect our creators – are you going to do it or are we going to have to start denying protection to American creators in our countries”?
This is just a leveling of the playing field.
Yes, the blog quoted by the OP is either entirely ignorant of copyright law or he’s being deliberately and misleadingly alarmist.
nm