BERNE BURNS DOMESTIC ART LOVERS — An analysis of the recent Golan decision and the future of the public domain

BY:  STEPHANIE BRINKLEY

According to The Hollywood Reporter, television producer Veena Sud will partner with U.S. entertainment powerhouses Paramount Pictures and The Montecito Picture Company on a remake of Alfred Hitchcock’s thriller, “Suspicion”.[1]  Created in 1941, “Suspicion” is a derivative work based on the 1932 crime novel Before the Fact, which was written by English-born novelist Anthony Berkeley.[2]  Unfortunately for Sud, Montecito and Paramount,  a recent decision from the U.S. Supreme Court has created new hurdles for such remakes.  Specifically, the project’s backers and other parties wishing to recreate classic works created outside of the U.S. will face new challenges in the area of  U.S. copyright law due to the recent decision in Golan v. Holder[3].

Decided on January 18, 2012, Golan [4] pins U.S. art performers, proprietors, and audiences against Congress in a battle over works previously in the public domain.  Petitioner’s Counsel, Anthony Falzone explained as follows:

For 200 years, the Copyright Act placed a huge array of works into the public domain through a combination of term limits and eligibility requirements. It created a vast reservoir of knowledge, learning and artistic creativity that millions of us use every day. … [I]n 1994, [ ] Congress passed a law that removed a vast body of foreign works from the public  domain…The Register of Copyrights estimated the works affected by this law  “probably number in the millions.”  Congress took the rights in these works from the American public and handed them over to foreign authors and their heirs in the express hope that foreign countries would reciprocate by giving U.S. copyright owners new rights  in works that were in the public domains of those foreign countries.[5]

Despite the Petitioners’ best efforts and outcries for Constitutional and artistic protection, the Court has seemingly “burned” domestic art lovers, in the interest of furthering foreign diplomacy under the auspices of The Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention” or “Berne”).

The Berne Convention could best be thought of as a “Kumbaya”[6] provision in international copyright protection.  Ideally, Berne provides a happy medium whereby its 164 members agree to give equal treatment to the copyright protected materials established in a foreign member country, and vice versa.  Seems reasonable, and in fact, necessary.  Especially as globalization and the dissemination of information across international borders continues to expand via the Internet

Prior to the United States’ adoption of Berne in 1989, “the only foreign authors eligible for Copyright Act protection were those whose countries [previously] granted reciprocal rights to American authors[,] and whose works were printed in the United States.”[7]  In an attempt to match the efforts and copyright regimes of its fellow Berne members, Congress enacted the Uruguay Round Agreements Act, §514 (“URAA”).[8]  Enacted in 1994, the URAA removed foreign created works from the public domain by restoring U.S. copyright protection to foreign parties whose works would otherwise be open to use and free of any copyright protection in the United States.[9]

Petitioners in the Golan action insist that the URAA does not result in positive foreign relations, but rather serves as an unconstitutional provision that not only attempts to privative copyright law, but also takes away Americans’ First Amendment right to freely express themselves via the use of works that have become artistic mainstays among American  audiences.[10]  Consider, for example, an elementary school production of Sergei Prokofiev’s  Peter and the Wolf, or a copy of Picasso’s Guernica sold either in a local bookstore, or to further complicate things, on a U.S. based website.  Under Golan, if the aforementioned activities were conducted without the expressed consent of the foreign copyright owner, the elementary school, the bookstore owner, and the website proprietor would all be liable for violations of U.S. copyright Law.

In a 6-2 decision, the Court defended the URAA, asserting that by “….aligning the United States with other nations bound by Berne, Congress can hardly be charged with a design to move stealthily toward a perpetual copyright regime.”[11]  Resting heavily on the Court’s 2003 decision of Eldred v. Ashcroft[12], the Court found that the U.S. Copyright Clause does not “command that a time prescription, once set, becomes forever ‘fixed’ or ‘inalterable,” therefore, a work’s protection (or lack thereof) under U.S. copyright law today, does not  ensure the piece will have the same copyright status tomorrow.[13]  Additionally, in response to the petitioner’s claim that the URAA does not meet the Copyright Clause’s original objective to “promote the Progress of Science” because it affects only works already created, the Court asserted that the “creation of new works [ ] is not the sole  way Congress may promote “science,” i.e., knowledge and learning.”[14]  Therefore, United States based “orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works” will have to go back to the drawing board when it comes to their artistic selections.[15]

Although problematic, the interest in foreign diplomacy and helping to ensure copyright owners, whether on U.S. soil or abroad, are given a means to benefit financially from the works they own, makes the URAA a legitimate legal principle.  Once again considering to the “Suspicion” example referenced earlier, should Sud’s project get off the ground and become a lucrative project for its creators, Hitchcock and Berkeley’s heirs should have a means to capitalize on the fruits of their artistic ancestors’ labor.  The URAA creates such a means.

A problem arises, however, in the facilitation of the URAA provision.  Consider, for example, a poem that is regularly recited at poetry slams throughout the country, but its author is unknown.  As Breyer alluded to in the dissent in Golan, orphaned work such as this would create an added hurdle in receiving copyright licenses for use of seemingly parentless pieces.  And what will become of less-than lucrative artistic institutions that have built a reputation by using works previously in the public domain? These unlikely “infringers” now have a duty to reach beyond U.S. borders to ensure that its performances fall within URAA provisions.  But will these art helms have the financial resources and manpower to secure the appropriate permissions?  This is doubtful, which will ultimately result in the already dwindling U.S. arts community being subjected to added financial strains.  Furthermore, as is often a major concern in U.S. copyright law and practice, who will be responsible for policing art proprietors to ensure URAA compliance?

To require and successfully carry out the level of protection afforded by the URAA will undoubtedly have a lasting impact on the already rising costs of entertainment in the domestic market.  And it can be argued that the provision’s benefits, though based on protecting non-American copyright holders, are founded upon a very American principle – that being the power of the almighty dollar.

 


[1] Daniel N. Miller, ‘The Killing’ Showrunner to Write Remake of Hitchcock’s ‘Suspicion’ for Paramount, The Hollywood Reporter (Feb. 13, 2012), http://www.hollywoodreporter.com/news/killing-showrunner-veena-sud-hitchcock-suspicion-290219.

[3] 132 S.Ct. 873 (2012)

[4]Id.

[5] Anthony Falzone, Updated: Golan v. Holder Merits Brief Explains Why Congress is Not Allowed to Privatize the Public Domain, The Center for Internet and Society at Stanford
Law School, http://cyberlaw.stanford.edu/node/6684 (last visited Feb. 11, 2012).

[6] An African-American song from the 1930’s often associated with human unity,
closeness and compassion (which is no longer in the public domain); see http://en.wikipedia.org/wiki/Kumbaya (last visited February 11, 2012).

[7] Golan at 874.

[8] Id. at 875.

[9] Id.

[10] Brief of Petitioner-Appellant at 14, Golan v. Holder, 132 S.Ct. 873 (2012) (No. 10-545).

[11] Golan at 875-76.

[12] 537 U. S. 186, 199 (2003)

[13] Id. at 875.

[14] Id. at 888.

[15] Id. at 875.

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