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The Genius of Free Governments

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This week the Supreme Court will hear a case concerning what ought to be called "copyright rendition." The plaintiffs in Golan v. Holder are challenging a 1994 law that, for the first time in U.S. history, removed hundreds of thousands of works from the public domain by allowing foreign authors to revive their expired or defunct copyrights. Lawyers call this "copyright restoration" but "rendition" is the better word: our lawmakers have taken work that once lived freely among us and returned it to foreign masters.

The plaintiffs in Golan include orchestra conductors, educators, performers, and film archivists who have relied on a stable, clearly-defined public domain for both business and creative practice. They can do that no longer. Low-budget orchestras that once offered Prokofiev, Stravinsky, and Shostakovich cannot now do so; distributors that listed early films of Fellini and Hitchcock have had to delete them from their catalogs; bookstores that offered cheap editions of Joseph Conrad, George Orwell, H.G. Wells, and Virginia Woolf have pulled them from the shelves.

The public's unfettered use of such works is only a small part of what Congress has compromised. One of the freedoms important to our Founders is at risk as well. Copyright law in its earliest days was designed not just to give authors their due but also to assure public access to what had previously been a decidedly un-free press. When printing first arose in Europe it was almost always controlled by the state. In seventeenth-century England, for example, licensing laws stood in the way of all supposedly offensive books and the Crown gave publishing monopolies to favored printers who then dutifully provided a second ring of censorship.

This system began to break down late in the century under pressure from Protestant intellectuals. In 1694, when a new licensing act was being debated in Parliament, John Locke wrote to oppose both the act and the Crown monopolies. These together, he complained, destroyed the free market in books and were thus injurious to learning. Absent any competition, printing in London was "very bad and yet... very dear," controlled by "a lazy, ignorant" press that did little more than assure the Mother Church that she'd never be "disturbed in her opinions."

Locke never questioned the idea that publishers should have copyrights; he worried rather about their longevity. It certainly made no sense for any printer to have a corner on the work of Cicero, say, written a good 1700 years ago. As for the publishers of modern authors, Locke proposed that the law "limit their property to a certain number of years after the death of the author, or the first printing of the book, as, suppose, fifty or seventy years."

The founding generation in the United States was direct heir of this British distaste for print monopolies. As the Constitution was being written, Jefferson wrote Madison to say the Bill of Rights ought to forbid "even... limited monopolies" outright, their benefit being "too doubtful to be opposed to that of their general suppression." Madison disagreed but even so, when revisiting the subject late in life, he advised that "Monopolies... ought to be granted with caution, and guarded with strictness against abuse." Noting that the Constitution had in fact allowed them for "the authors of Books and of useful inventions," he nonetheless underscored the Constitution's demand that the grant be "limited." "A temporary monopoly...ought to be temporary.... Perpetual monopolies of every sort are forbidden... by the genius of free Governments."

Since its beginnings both here and abroad, then, copyright law has always limited the privileges it settles on authors. By so doing it simultaneously secures two good but potentially conflicting ends. Most obvious and commendable, authors get ownership of their work and thus entry into the market and freedom from patronage. Less obvious, perhaps, but equally commendable, the limit on ownership gives birth to the public domain, that vast realm of expression to which all of us have equal access.

"The ancients," wrote Henry Fielding, "may be considered as a rich Common, where every Person who hath the smallest tenement in Parnassus hath a free right to fatten his Muse." Limited term copyright smartly enlarges that common so that all Muses may browse on the recent past as well. It gives "We the People" full access to our inheritance.

Or rather, it gives us access only so long as our leaders respect the bright line of copyright's limited term. We should all be watching Golan v. Holder to see if the Supreme Court will hold that line, as both tradition and common sense demand.