Category: Public Domain

In a major defeat for public domain advocacy, the US Supreme Court has ruled against Lawrence Golan and others in Golan v. Holder.

Here is an excerpt from a synopsis of the case from the Legal Information Institute:

Congress enacted Section 514 of the Uruguay Round Agreements Act in order to comply with the international copyright standards of the Berne Convention for the Protection of Literary and Artistic Works. Section 514 restores copyright protection to foreign works currently found in the public domain. Lawrence Golan and other performers, educators, and motion picture distributors brought this suit challenging Section 514, arguing that Congress's removal of works from the public domain exceeded its Copyright Clause powers. Golan also argues that Section 514 violates the First Amendment because the law does not serve any important government interests. Attorney General Holder counters that the Copyright Clause does not restrict Congress's authority to remove works from the public domain. He further argues that Section 514 does not violate the First Amendment because the government has a substantial interest in complying with the Berne Convention and protecting American works abroad.

Here's an excerpt from the ruling:

Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judgment of the Court of Appeals for the Tenth Circuit is therefore Affirmed.

In a lengthy dissent, Justice Stephen Breyer said:

The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute.

Justice Samuel Alito also dissented.

| Digital Scholarship |

"The Digital Public Domain: Relevance and Regulation," which Leonhard Dobusch presented at 1st Berlin Symposium on Internet and Society, is now available.

Here's an excerpt:

After clarifying the notion and different areas of the (digital) "public domain" the paper engages in discussing literature on its relevance for society in general and economic innovation in particular. The effectiveness of the utilization of these abstract potentials however depends on the respective public domain regulation. In this context, the paper distinguishes different regulatory modes and arenas in both copyright and patent law, thereby focusing private regulatory initiatives such as Creative Commons or Biological Open Source (BiOS). In the last section, the paper presents open research questions and makes some preliminary suggestions for potential research strategies.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

The Supreme Court is now considering the Golan v. Holder case, which has significant implications for public domain works.

Here's an excerpt from the Supreme Court's Granted and Noted List entry that describes the case:

Section 514 of the Uruguay Round Agreements Act of 1994 (Section 514) did something unique in the history of American intellectual property law: It "restored" copyright protection in thousands of works that the Copyright Act had placed in the Public Domain, where they remained for years as the common property of all Americans. The Petitioners in this case are orchestra conductors, educators, performers, film archivists and motion picture distributors, who relied for years on the free availability of these works in the Public Domain, which they performed, adapted, restored and distributed without restriction. The enactment of Section 514 therefore had a dramatic effect on Petitioners' free speech and expression rights, as well as their economic interests. Section 514 eliminated Petitioners' right to perform, share and build upon works they had once been able to use freely. The questions presented are:

1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?
2. Does Section 514 violate the First Amendment of the United States Constitution?

Transcripts of the oral arguments are available. The first one has been made public.

Read more about it at "Supreme Court Weighs Legality of Putting Public Domain Works Back under Copyright."

| New: Institutional Repository and ETD Bibliography 2011 | Digital Scholarship |

Walt Crawford has published "Talking about the Public Domain" in the latest issue of Cites & Insights: Crawford at Large.

Here's an excerpt:

Ah, the public domain: Where creative work is supposed to wind up after a limited period during which the creator has exclusive control over distribution and copying. An ever-growing pool of literature, music, photography, video and art that we can use not only as inspiration but also as the direct basis for new works, annotating, deriving or just plain redistributing.

What a wonderful thing.

Too bad it's basically been frozen for quite a few years now, with almost nothing new entering the pool (except government publications—which start in the public domain) and things tagged with the Creative Commons CC0 license. Oh, and probably a few cases where a creator's been dead more than 70 years and has works produced since 1923.

Not only has it been frozen in the U.S., there are laws and treaties that would appear to shrink the public domain pool—which should, by any rational reading of the Constitution, be flatly unconstitutional.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

Rufus Pollock and Paul Stepan have self-archived "The Size of the EU Public Domain."

Here's an excerpt:

This paper reports results from a large recent study of the public domain in the European Union. Based on a combination of catalogue and survey data our figures for the number of items (and works) in the public domain extend across a variety of media and provide one of the first quantitative estimates of the 'size' of the public domain in any jurisdiction.

See also their related eprint "The Value of the EU Public Domain."

Laura N. Gasaway, Associate Dean for Academic Affairs and Professor of Law at the University of North Carolina School of Law, has self-archived "A Defense of the Public Domain: A Scholarly Essay" in SelectedWorks.

Here's the abstract:

Much has been written for librarians about copyright law. Despite the importance of the public domain, it has attracted much less scholarly attention than has copyright law generally, and yet a healthy and robust public domain is crucial to our society. It provides the building blocks for authors, composers, artists and movie makers who can borrow from public domain works without seeking permission of copyright owners. Unfortunately, the public domain is under attack from expanding the term of copyright, to making it more difficult for works to enter the public domain to the restoration of some foreign copyrights that had entered the public domain in the United States. Some librarians have asked whether vigorous application of fair use could not substitute for the shrinking public domain. It cannot. Fair use is a defense to copyright infringement and is very fact determinate. A court's finding of fair use applies only to the two parties to the litigation while the public domain is available to everyone from individual users of works, to artists and authors and to publishers and producers. It is crucial that the public domain be energetically defended. Today, it is not clear whether an author can even place his or her work in the public domain since copyright attaches automatically. A statutory method must be developed so that authors who wish to do so can easily place their works in the public domain.