01/10/2013 08:56 am ET

Public by Sufferance Alone: The Worst of 2012

2012 is over. Those of us who study law can understand why y'all would be more focused on remarkable legal events from the past 12 months such as Chief Justice Roberts trying to reinvent himself as a statesman who -- commendably -- cast the decisive vote to uphold Obamacare, albeit for somewhat bizarre reasons. (In his confirmation hearings, he had positioned himself as an "umpire" who just "calls strikes." Continuing the metaphor, his opinion in the Obamacare decision would be calling strikes.... because statesman umpires thought healthcare mandates were taxes, maybe, that 8 other umpires radically disagreed on, so they were probably ok. Right?)

We would like to persuade you that 2012 also held another decision that deserves your attention. It has to do with our collective culture. Because in 2012 the Supreme Court decided that Congress could take it away from us. No, really. That is what they decided.

In 2003, many of those who rely on the public domain had their hopes dashed by Eldred v. Ashcroft, the case that upheld the 20-year extension to the copyright term. (The effects of repeated term extensions are explored in more detail here.) The Constitution declares that copyrights must only be "for limited times" and that Congress can only create exclusive rights to "promote the progress" of knowledge and creativity. Despite those limitations, in Eldred, the Supreme Court held that Congress could retrospectively lengthen copyright terms - something that seemed neither "limited" nor aimed at promoting progress. (It is hard to incentivize dead authors!) What would have entered the public domain -- what would you have had freely and legally in 2013 if we had the "radical" law from 1976? Here's the answer. Read it and weep.

But 2012 was to hold in store an even more grievous blow to the public domain. In Golan v. Holder, the Supreme Court held that Congress can remove works from the public domain without violating the Constitution. Yes, that is right - even if the public now enjoys unfettered access to a work, Congress is allowed to take that work out of the public domain and create a new legal monopoly over it. What's more, the Court declared, Congress can do so even when it is clear that the new right "does not encourage anyone to produce a single new work"!

This decision marked a significant departure from the "bedrock principle" that once works enter the public domain, they remain there, free for anyone to use and build upon. The law at issue in Golan - Section 514 of the Uruguay Round Agreements Act - "restored" copyright to foreign works that had entered the American public domain for any of three reasons: the author failed to comply with copyright formalities, the U.S. did not have copyright relations with their country of origin at the time of publication, or they were sound recordings fixed before 1972. Golan was different from Eldred because while the works in Eldred were on the brink of entering the public domain, the works at issue in Golan were already in the public domain, and conductors, educators, film archivists and others were legally using them.

In upholding the law, the Golan majority explicitly endorsed the position that the public has no rights to the public domain. None. Under U.S. law as declared by the Court in this case, copyright is now officially "asymmetric." While those who have copyrights enjoy vested, legally protected rights, "[a]nyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works." The majority could not seem to imagine that the public had rights other than "ownership" over a free, collective culture. In a dissenting opinion, Justices Breyer and Alito asked "Does the [Constitution] empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural purposes - all without providing any additional incentive for the production of new material?" Their answer was "No."

What works were at issue in Golan? As Justice Breyer described the situation, "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." Moreover, many of these were obscure orphan works (works with no locatable rightsholder) that are now effectively off limits to educators, film collectors, community orchestras, and database compilers who previously had the right to use them for free.

What are the limits on this decision? Could Congress recall the works of Shakespeare, Plato, Mozart and Melville from the public domain, and create new legalized monopolies over them? It is hard to imagine anything more contrary to the First Amendment - would privatizing Shakespeare by government decree abridge freedom of speech? - or to the attitudes of those who penned the Copyright Clause that limits Congress's power to create new exclusive rights. Yet if one reads Golan, one searches in vain for any limiting principle on Congress's actions. In this decision, Justice Ginsburg's majority opinion effectively denies the public domain any meaningful Constitutional protection. Under the U.S. Constitution, says this case, the public domain is "public" only by sufferance. It may be privatized at any moment, at the whim of the Congress and without violating the Bill of Rights.

In our opinion as legal scholars, this decision is shockingly cavalier in its dismissal of the importance of the public domain to free speech and to the progress of science and culture. It is also, again in our opinion, unsupported by the text, structure and history of the Constitution. Indeed, it seems flatly contrary to the dictates of the First Amendment and the limitations imposed by the Copyright Clause. Yet its message, however lamentable, is clear. If the public domain is to be protected in the United States, it is not going to be through the Constitution, but through reasoned argument, democratic pressure and legislative action. The public domain will be "public" only so long as the public demands it.

James Boyle is William Neal Reynolds Professor of Law at Duke Law School. Jennifer Jenkins is the Director of the Center for the Study of the Public Domain at Duke Law School which every year produces a study of what would have entered the public domain but for copyright term extensions.

(Institutions for identification purposes only)

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