Golan v. Holder: U.S. Supreme Court to Consider Freedom of Expression and the Rights of Americans to Use Foreign Copyrighted Materials in the Public Domain
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In response to the copyright restoration legislation in the 1990s, a group of Plaintiffs including Richard Kapp and Lawrence Golan, conductor and professor at the University of Denver, have brought suit (Golan v. Holder, Tenth Circuit decision here)Â Â challenging the constitutionality of â€œcopyright restorationâ€ legislation, otherwise known as the The Sonny Bono Copyright Term Extension Act of 1998 (SBCTEA) and Section 514 of the Uruguay Round Agreements Act (URAA).
In passing SBCTEA and Section 514 of the URAA in 1994, U.S. Congress effectively granted new copyrights to many older foreign works, including those of which had previously been in the public domain in the United States. This copyright restoration legislation has had significant and far-reaching effects by removing thousands, if not millions, of worksâ€”including musical works by composers such as Shostakovich, Prokofiev and Stravinskyâ€”from fair use in the public domain.
Significantly, the legislation has had a chilling effect on the educational use of the restored copyrights in music. Following the legislation, many educators were forced to stop using works entirely as their use becameâ€”in many casesâ€”cost prohibitive. Notably, many of the works were the same works that educators had been previously and routinely using to teach students at no cost. In turn, the copyright restoration legislation impacted students, who no longer have the opportunity to learn and enjoy many works, as they once had done. The effect of restored copyright legislation on education has also burdened education beyond the classroom. For example, public education of music was hindered, as many orchestras can no longer afford to rent the piecesâ€”as customarily required to performâ€”at the incredibly high rates required by copyright holders.
Performance of derivative works (i.e. works derived from previous works) has also been drastically affected. For example, the late Richard Kapp, American conductor and educator, had produced his own recordings of Shostakovichâ€™s String Quartets, but following the copyright restoration legislation, found himself saddled with what is the restored copyright of someone else. This in-turn devastated the investment that Kapp had originally made in his recordings. In the end, Kapp was now required to pay to sell something that was derived from public domain works, and therefore supposed to be royalty free.
Perhaps understanding the grave impact that the copyright restoration legislation has had, this month, the US Supreme Court granted cert and agreed to hear arguments about whether Congress is constitutionally permitted to grant copyright protection to foreign works that are in the public domain under U.S. Copyright Law. The case is to be heard in Fall 2011, and the outcome will likely have a significant impact on both freedom of expression and the rights of individual Americans to use materials in the public domain.
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