The Supreme Court yesterday issued a ruling on the Golan copyright case which we’ve discussed here a few times before. The case involved whether works that had previously been within the public domain in the USA could be taken back out of it in order to comply with the Berne Convention international copyright treaty.
Disappointingly, the court ruled that Congress could indeed remove the works from the public domain—Congress did have the power to retroactively extend copyright on these works in order to bring the US into treaty compliance. The court rejected the idea that the First Amendment applied for orchestras that had been making a living performing these works without paying royalties because they could still perform them by paying royalties.
It’s not too big of a surprise, really; this is mostly the same court that issued a similar ruling on Eldred vs. Ashcroft nine years ago. And while it is disappointing, there is a danger that we can make too big a deal out of it. Unlike with Eldred vs. Ashcroft, the public domain was not really the central issue here—the main import of the decision regards what Congress can do in general to enforce compliance with international treaties. Copyright was just the subject of this particular treaty.
What might be more worrying are the implications this might have for things like the ACTA treaty that was signed last October, which at one point included three-strikes and global DMCA-style language. If Congress can remove works from the public domain—something that by and large had not happened before—what else can’t they do?