Can Works In the Public Domain be Re-Copyrighted? The Supreme Court Says YES

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It’s like an unspoken, almost sacred concept in copyright law.

It’s the public domain, where cultural creations exist unfettered, without a legal owner (though often, a credited author).  These works are free for re-use, reinterpretation, and sale, and a protected place where orchestra conductors, curators, and preservationists frequently roam.

Or are they?  According to a Supreme Court decision handed down Wednesday, works in the public domain can be copyrighted again, even after decades of lacking any intellectual property protection.  The 6-2 ruling in the case, Golan v. Holder, specifically revolved around disparities in cross-border copyright protections, including those between Europe and the United States.  “Assuming a foreign and domestic author died the same day, their works will [now] enter the public domain simultaneously,” Justice Ruth Ginsburg opined for the majority.  “Prokofiev’s ‘Peter and the Wolf’ could once be performed free of charge [in the US],” while now “the right to perform it must be obtained in the marketplace.”

Which means, some old composer is now on equal footing with some other old composer, which is probably bad news for the ‘cultural footprint’.  “This is the same marketplace, of course, that exists for the music of Prokofiev’s US contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of US concertgoers.”

But wait: isn’t copyright (and broader intellectual property protection) about encouraging innovation, and protecting new works?  That sacred thought has now been smashed, with the justices challenging the notion that the public domain is some irreversible territory.  But the impact on newer authors, unfortunately, may effectively be nill.  “The statute before us,” Justice Stephen Breyer dissented, “does not encourage anyone to produce a single new work.”

The court prioritized the alignment of US copyright law with international treaties, particularly those codified in the Berne Convention.  But Breyer was worried about the implications of all of this.  “If a school orchestra or other nonprofit organization cannot afford the new charges, so be it,” Breyer continued.  “They will have to do without — aggravating the already serious problem of cultural education in the United States.”