Imagine being director of a children’s music camp that for decades has performed Prokofiev’s “Peter and the Wolf,” when suddenly, Congress decrees that you may not perform that music anymore. Or imagine being a museum curator and suddenly being told that you must remove prints by Picasso and Escher that you’ve displayed for years.
Sound far-fetched? Congress did just this in 1994 when it granted copyrights to thousands of foreign authors for works that had been uncopyrighted in the United States for decades, and thus free for all to use.
Recently, in Golan v. Holder, the Supreme Court held, surprisingly, that it was perfectly all right for Congress to do this.
The plaintiffs in Golan — teachers, orchestra conductors, and film archivists — argued that the Constitution restricts Congress to granting copyrights only “to promote the progress of science.”
By “promoting … science” the Founders meant the creation and dissemination of knowledge. The plaintiffs argued that Congress’ grant of copyrights to thousands of existing works obviously did not promote their creation, and that suddenly putting price tags on these previously free works limited, rather than enhanced, their dissemination.
The government defended the legislation, arguing that Congress was required to pass it by the 1994 General Agreement on Tariffs and Trade treaty. But even if this was so, treaties are inferior to the Constitution, and thus cannot give Congress the power to do something that the Constitution limits.
Unfortunately, the Supreme Court never really discussed what limits the Constitution’s words “promote the progress” create. Rather, the court asserted that copyright laws need not be limited to encouraging the creation of new works; the court insisted they may also promote the dissemination of existing works.
While this is a reasonable interpretation, the court never analyzed whether the copyright grants in Golan actually increased the dissemination of works.
Instead, the court shifted to an argument from precedent, asserting that Congress has a history of granting copyrights to public domain works. The court cited laws granting copyrights to authors after disruptions from world wars, as well as a handful of instances when Congress extended copyrights or patents via private bills to those whose rights had recently lapsed. None of these earlier laws was ever challenged in court.
Had the court done even the most basic analysis, it would have had to conclude that the copyright grants in Golan couldn’t have increased the dissemination of existing works.
Before Congress acted, foreign works, such as Igor Stravinsky’s “Soldier’s Tale,” could be freely copied, performed and disseminated by anyone. Now, these works may only be performed with permission of the artist’s heirs, for a price.
This may give some incentive to the heirs of obscure foreign artists to market the newly copyrighted works, but it is plain that any additional dissemination by heirs is dwarfed by the loss of the right of the public to freely use these works.
Under the court’s reasoning, there is nothing to stop future Congresses from granting patent and copyright protections in the same way they were granted in 16th century England — as favors passed out to those with connections, rather than as incentives to create and disseminate knowledge.
Politicians no longer would have to settle for handing out ambassadorships or tax subsidies; instead, they could reward donors with exclusive rights to “incentivize” the publication of popular works, perhaps those of Mark Twain, Charles Dickens or Jane Austen.
Hopefully the court will walk back this line of reasoning in a future case before Congress realizes the opportunity that has been provided.
David Olson is an assistant professor at Boston College Law School where he teaches patents, intellectual property, and antitrust law.
