'Peter and the Wolf' must be paid

By Michael P. Tremoglie | Jan 24, 2012


WASHINGTON (Legal Newsline) - The United States Supreme Court has ruled that a treaty did not exceed Congressional authority in the copyright clause of the Constitution.

In a Jan. 18 ruling on Golan v. Holder, the court held 6-2 that a treaty seeking to equalize copyright protection on an international basis, called the Uruguay Round Agreements Act, did not exceed that authority.

Justice Ruth Bader Ginsburg delivered the majority opinion of the Court. Joining her were Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Sonia Sotomayor joined. Justices Stephen Breyer and Samuel Alito dissented. Justice Elena Kagan did not take part.

Section 514 of the URAA effectively restored copyright status to foreign works previously in the public domain in the United States. The petitioners were "orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works 514 removed from the public domain."

Their argument was that Congress, in passing 514, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.

The justices dismissed the First Amendment and Constitutional copyright clause arguments by asserting that the public domain was not "a category of constitutional significance." They opined that copyright protections might be expanded even if they did not create incentives for new works to be created.

Justice Ginsburg wrote, "The question here ... is whether would-be users must pay for their desired use of the author's expression, or else limit their exploitation to "fair use" of that work. Prokofiev's 'Peter and the Wolf' could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace. This is the same market­place, of course, that exists for the music of Prokofiev's U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers."

So significant was this case in terms of the Constitution that a panel assembled by the Philadelphia chapter of the Federalist Society talked about it while debating the concept of "original intent" in interpreting the law. The debate was held at the Philadelphia law offices of Blank, Rome.

The court addressed the original intent issue tangentially. It said, "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."

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