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Falling Into and Out of the Public Domain

Co-author Gerald M. Levine

Once in the public domain content (which includes characters) is free; to copy or create derivative works. P.D. James’ Death Comes to Pemberley and a continuing stream of novels featuring Sherlock Holmes are recent examples. Until works fall into the public domain content and characters are not free. They are copyright protected. Authors (defined in the broadest sense under the Copyright Act) are entitled to payment.

There are two cases from the U.S. Supreme Court of particular importance concerning the public domain: Eldred v. Ashcroft, 537 U.S. 186 (2003) and Golan v. Holder, 10-545 (January 18, 2012). Both involved Constitutional challenges to laws passed respectively in 1998 and 1994. The challenge in Eldred was suspension of works falling into the public domain and in Golan restoring a class of works to the public domain. The Court in Golan explained that “Congress recurrently adjusts copyright law to protect categories of works once outside the law’s compass” and gives as an example “extend[ing] copyright protection to foreign works in 1891.” The Eldred challenge involved another kind of copyright “adjustment.”

First, some context. During the term of copyright an author or her exclusive licensees controls exploitation of a work. After expiration, works fall into the public domain for use by individuals and businesses whose products and services build on copyrighted works. “On occasion, however, Congress has seen fit to protect works once freely available,” although even they have their term. “[N]o one … acquires ownership rights in the once-protected works.”[Golan]. Works deriving from once-protected works, of course, are entitled to their own copyright. Presently, the term of copyright is life plus 70 years. The first U.S. Copyright Act of 1790 granted authors a limited monopoly of 28 years, 14 on registration and 14 on renewal. Prior to the present Copyright Act of 1976 (effective January 1, 1978) the term had been 56 years, 28 and 28.

The current term of life plus 70 years was driven by United States’ adoption in 1988 of the Berne Convention (1886), but not fully implemented until the passage of the Copyright Term Extension Act of 1998 (CTEA), generally referred to as the Sonny Bono Act or (humorously) the Mickey Mouse Act. This Act did two things: extended copyright term by 20 years (conforming in some but not all respects to the Berne Convention) and suspended by like years works falling into the public domain. It effected only authors who had registered for copyright in the United States. It did not effect foreign authors with no registration in the U.S. As a result, and only for domestic copyrights, no currently protected works will fall into the public domain until January 1, 2019.

The 20-year suspension triggered an unsuccessful Constitutional challenge in Eldred. In rejecting the Petitioners’ argument, individuals and businesses whose works and services build on copyrighted works will have to wait for another 7 years. Wait, that is for domestic copyrights to expire. However, works by foreign authors began falling into the public domain with the result that “orchestra conducts, musicians, publishers, and others … [began] enjoy[ing] free access.”

This anomaly (lower protection for foreign authors inconsistent with the Berne Convention) was rectified by the Uruguay Round Agreements Act in 1994 (URAA). The URAA granted foreign authors the protection they did not previously have under U.S. copyright law and triggered another Constitutional challenge that was finally resolved in the Golan case. The ultimate purpose of the adjustments to the Copyright Act were to protect U.S. authors, which could only be accomplished by protecting foreign ones.

As in Eldred, Petitioners were individuals and businesses who rely for their livelihoods on exploiting public domain works. They complained that restoring works that had already fallen into the public domain “violates the ‘limited [t]imes restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” The Court rejected this analysis. “The terms afforded works restored … are no less ‘limited’ than those the CTEA lengthened.” In other words, all works in due course will fall into the public domain — the “limited [t]imes of the U.S. Constitution. It just may not be in one’s lifetime.

As also in Eldred, the Supreme Court in Golan concluded (in the words of the Tenth Circuit Court of Appeals whose judgment it affirmed) that “the law was narrowly tailored to fit the important government aim of protection U.S. copyright holders’ interest abroad.” Congress recognized the disruption in removing works from the public domain by building into the URAA a mechanism for relieving “reliance parties” of some of the impact by deferring the date from which enforcement runs. The Court concluded that the law “does not transgress constitutional limitations on Congress’ authority.”

Not surprisingly, laws that affect intellectual property rights are bound to be unevenly received by winners and losers. As the Supreme Court explained in another case, Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) “[T]he text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the appropriate public access to their work product…. [T]hat task involves a difficult balance between ‘competing interests’ as reflected in the frequent modifications of the relevant statutes.”

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