Substantive Property Rights in the Public Domain?

Mike Richards

On October 5, the Supreme Court heard oral arguments in Golan v. Holder. At issue is whether Congress exceeded its power under the Copyright Clause or violated the First Amendment by taking thousands of works previously in the public domain and granting them copyright protection.

For decades, works by non-U.S. authors passed immediately into the public domain in the United States if they failed to comply with certain registration and notice requirements of the Copyright Act. In 1994, Congress passed the Uruguay Round Agreement Act, section 514 of which gave copyright protection to those works. The appellants in Golan argue that section 514 violates both the Progress Clause and the Limited Times Clause of Article I, § 8 of the Constitution, and the First Amendment. A number of news articles, including these from the New York Times, the Washington Post, and SCOTUSblog, give more details on the background of and legal arguments at issue in the case.

Much of the oral argument focused on Article I, § 8, and the First Amendment. But an exchange between the appellants’ counsel, Anthony Falzone, and Justice Kennedy raised another question: does the public have an affirmative substantive property interest in works that are in the public domain?

JUSTICE KENNEDY: Can you tell me a little bit about the phrase and the argument about the public domain? Is in your view that just a synonym for when the time has ended? Or is there something more substantive to it that—is it your position that the public somehow owns what's in the public domain?

Tr. at 15. Falzone seemed to answer that “public domain” is simply a shorthand designation to indicate that a work is no longer subject to any copyright protection.

MR. FALZONE: [W]hen I refer to the public domain, it’s the collection of things for which Congress had said protection is done, it's over, we’ve hit the limit, it’s done. So things that went—

JUSTICE KENNEDY: Once again, it's just a conclusion for the argument.

MR. FALZONE: I—I think that's the operative concept here. That's right.

Tr. at 16. But later in the oral argument, while discussing the First Amendment, Falzone suggested that “public domain” is a much more robust, substantive concept. He argued that section 514 “t[ook] away public speech rights,” converting them into “somebody else’s private property.” Tr. at 23. Justice Kennedy asked again for clarification whether the notion of the public domain implies that “the public does own something,” saying he understood Falzone to have disavowed any substantive dimension to public domain.

MR. FALZONE: In that case, I misspoke. The public—the public domain is owned collectively by the public, and in fact, decisions of this Court going back to the 19th century refer to it as public property.

Tr. at 24. Although not framed as a central issue in the case, the notion that the American public has a collective affirmative property interest in works in the public domain is potentially of great importance. Indeed, the wording of the question presented on which the Court granted certiorari assumes such an interest, observing that section 514 gave “copyright protection in thousands of works that the Copyright Act had Public Domain, where they remained for years as the common property of all Americans.” Brief for Pet’rs at i (emphasis added). Such a theory would also help resolve what Rebecca Tushnet, recapping the oral argument in colorful and meticulous detail for SCOTUSblog, characterized as a “seemingly arbitrary consequence” of the appellants’ position:

The Chief Justice pointed out that Falzone’s rule has a seemingly arbitrary consequence: Congress can extend a term that’s about to expire . . . but on the next day it loses its power to extend that term.

Viewed through the lens of a collective substantive property right in the public domain, however, that consequence is perfectly sensible: until the copyright term has expired, the public right in the work is a contingent interest subject to Congressional modification. Once the public’s right in the work vests, however, Congress can’t simply take the property away and reassign it to a private party. Whether or not this ends up being a decisive issue in the case—and I suspect, however the Court rules, it will not be—the possibility of affirmative substantive rights in the public domain deserve careful scholarly attention.

The transcript of the oral argument is available here, the recording here.