A quick follow up to my post last fall on Golan v. Holder, regarding the constitutionality of § 514 of the Uruguay Round Agreement Act, which gave copyright protection to thousands of works that previously had been in the public domain. Picking up on an exchange between the petitioners’ counsel and Justice Kennedy at oral argument, I wrote in favor of the view that the public has an affirmative propriety interest in works in the public domain that might defeat Congress’s subsequent extension of copyright protection.
The Court squarely rejected that theory when it decided the case last month. By a vote of six to two, with Justice Kagan recused, the Court upheld § 514 against challenges based on the Copyright Clause and the First Amendment. The public domain is nothing more than the state into which a work defaults when it is not protected by copyright: “To copyright lawyers, the ‘vested rights’ formulation might sound exactly backwards . . . . Anyone has free access to the public domain, but no one . . . acquires ownership rights in the once-protected works.” Golan v. Holder, slip op. at 28.
What’s most notable about Golan is not that the Court upheld the constitutionality of § 514—that’s disappointing but not particularly surprising—but the unquestioning deference the Court appears willing to give Congress when it legislates pursuant to the Copyright Clause. The Court reiterated the rule stated in Eldred v. Ashcroft, 537 U.S. 186 (2003), that the Constitution “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the [Copyright] Clause.” Golan slip op. at 21 (quoting Eldred, 537 U.S. at 222).
It not clear that there need be any articulable theory of how a given expansion of copyright protection would serve the constitutionally mandated objective of “promot[ing] the progress of science.” U.S. Const., Art. I, § 8. Golan accepts the petitioners’ argument that § 514 will not lead to the creation of a single new work, even though, in dissent, Justice Breyer makes a convincing argument that promoting the creation of news works is the core purpose of the Copyright Clause. See id., Breyer, J., dissenting, at 6–7. Instead, the Court posits that the restoration might induce dissemination of existing works. Without quarreling with the Court’s premise that dissemination is a legitimate, if secondary, goal to be furthered under the Copyright Clause—I believe it is—it is not immediately apparent to me how extending copyright protection to Prokofiev’s “Peter and the Wolf”—a work that “could once be performed free of charge”—furthers dissemination of the work. Golan slip op. at 29. Rather, it subjects anyone wishing to perform or republish it to significant royalty payments and transaction costs. See id., at 2 (Breyer, J., dissenting) (“[C]opyright tends to restrict the dissemination (and use) of works . . . .”); id at 10 (“The price of a score of Shostakovich’s Preludes and Fugues Op. 87, for example, has risen by a multiple of seven” since § 514 took effect).
Even if the Court is right that there is some dissemination benefit created for American works in foreign countries by expanding the scope of American copyright protection for foreign works, that benefit is so attenuated, particularly when compared with the burden on dissemination that § 514 imposes on the newly protected works themselves, that the sort of uncritical deference the Court affords Congress is plainly inappropriate. As Justice Breyer’s dissent points out, § 514 did not present the sort of policy-inflected, difficult line-drawing conundrum beyond the scope of judicial expertise that was at issue in Eldred—“when is a copyright term too long?”—but rather presented the Court the opportunity to set out a simple rule that balances public and private good: Congress may not remove works from the public domain without some concomitant public benefit. See id. at 14.
Unchecked deference to Congress is particularly inappropriate in the context of the public domain because of the obvious and generally insuperable collective action problem: while works in the public domain confer enormous benefits on society at large, the benefits are diffuse. The value of the public domain is neither easily quantified nor easily monetized. The interests at stake when Congress considered § 514 were those who stood to gain direct and immediate economic benefit from the legislation on one side and “badly organized unknown users who find it difficult to argue and present their case to Congress” on the other. Id., at 15 (Breyer, J., dissenting). Congressional testimony preceding passage of § 514 came almost exclusively from the former group. See id. at 15–16. Given the practical difficulties in representing the interests of the general public at large in the legislative process, particularly in the face of well-organized, well-funded interests standing on the opposite side of the issue, the Court should be more willing, not less, to scrutinize Congressional action that burdens the public domain.
More troubling still, the reasoning of Golan lacks any limiting principle. Since the public domain is simply some no-man’s land where works go when not protected by copyright, there is, by the Court’s logic, nothing to stop Congress from extending new copyright protection to a work that passed into the public domain after completing its full statutory term of protection. Were Congress to do that, it’s possible that the Court would disapprove; there may well be justices who voted with the majority in Golan who would be more circumspect about upholding a new term of protection for a work that had run its full term, moved into the public domain, then gained new protection. But if the Court would disapprove, it would do so only because of some sense that the law had simply gone too far or perhaps because it “altered the traditional contours of copyright protection.” Eldred, 537 U.S. at 221. Golan itself contains no limiting principle about the nature of the public domain, nor any indication that the Court is willing to enforce substantive constraints on Congress’s legislation under the Copyright Clause. As long as Congress makes some de minimis determination that an expansion of copyright “will serve the ends of the Clause,” the Constitution apparently is satisfied. See Golan slip op. at 21. Golan appears to permit Congress to pass legislation tomorrow that would extend copyright protection to the works of Hawthorne and Swift. See id., at 20 (Breyer, J., dissenting).
Creators should surely profit from their work. That is the premise of the Copyright Clause. But when Congress is given apparently unconstrained power to enlarge copyright protection to a functionally unlimited length of time as in Eldred or to remove from the public domain works that have been freely available for public use for decades as in Golan, we have lost the delicate balance between private and public good that the Clause is meant to protect. “[A]s the Founders recognized, monopoly is a two-edged sword.” Id., at 2 (Breyer, J., dissenting). Golan sharpens one of those edges too much at the expense of blunting the public domain.