Does Congress have the right to restore copyright protection to foreign works that have fallen into the public domain?
That issue is at the heart of a major copyright case that the Supreme Court agreed to hear yesterday. Its resolution could have implications for libraries’ ability to share works online, advocates say.
In dispute are decades-old foreign works that slipped into the public domain in the United States while still copyrighted abroad. Congress in 1994 adopted a bill to place those works back under the shield of copyright protection, in an effort to align U.S. policy with an international copyright treaty called the Berne Convention. The aim of that convention was to ensure that works copyrighted in one country get comparable protection elsewhere, “since there is no such thing as international copyright,” according to SCOTUSblog, which tracks the Supreme Court.
But the Internet Archive argues that the American law poses “a significant threat to the ability of libraries and archives to promote access to knowledge,” according to a brief filed on its behalf by the Electronic Frontier Foundation, a group that advocates for civil liberties online.
The problem is that the law has “drastically eroded” libraries’ ability to know what works can be distributed, the brief argues. For example, the Internet Archive currently shares books by Maxim Gorky, music by Prokofiev, and audio recordings of work by the writer Alexander Solzhenitsyn (pictured above). The law creates “fundamental questions” about whether these works remain in the public domain, according to the brief.
And that ambiguity could have a “chilling effect” on libraries worried that they could be sued for copyright violations, says Julie Samuels, a staff attorney at the Electronic Frontier Foundation. “A library might not provide access to certain works if they’re unsure if that work will remain in the public domain,” she tells Wired Campus.
It’s unclear how many works could be affected; Ms. Samuels says the number “could be into the millions.”
The case, Golan v. Holder, was pressed by conductors, performers, educators, and others who say they depend on public domain works for their livelihoods. A federal-appeals panel ruled against the group in July.
The Supreme Court is expected to make a decision on the case during the new term that starts in October.
