THE PUBLIC DOMAIN
In 1948, Twentieth-Century Fox released one of the Cold War’s first anti-communist films, Iron Curtain, the soundtrack of which featured music by Russian composer Dmitri Shostakovich. Shostakovich himself probably never saw the film, so it was presumably under orders from Stalin’s regime that his name soon appeared on a copyright infringement suit filed in the US. Had the suit succeeded it would have effectively prevented moviegoers in America from seeing Iron Curtain. But it did not succeed: Shostakovich’s music then lay in our public domain and, once there, its rights holders had no say in how it could be used.
Te public domain is a valuable guarantor of both free trade and free expression, which is why there was much at stake in the Golan case. Te plaintiffs in this litigation were challenging a 1994 law that has allowed foreign authors to revive their copyrights, removing from the public domain hundreds of thousands of works. Lawyers call this ‘copyright restoration’ but it might better be called ‘copyright rendition’: Congress has taken work that once lived freely among us and returned it to foreign masters.
Te plaintiffs in Golan included orchestra conductors, educators, performers and film archivists who have relied on a stable, clearly- defined public domain for both business and creative practice. Now they can’t. Low budget orchestras that once offered Prokofiev, Stravinsky, and Shostakovich can no longer do so; distributors that listed the early films of Federico Fellini, Fritz Lang, and Alfred Hitchcock have had to delete them from their catalogues; bookstores that offered cheap editions of Joseph Conrad, George Orwell, HG Wells, and Virginia Woolf no longer stock them.
On January 18 of this year the US Supreme Court decided a copyright case, Golan v Holder, in which the key question was whether Congress is ever allowed to ‘restore’ copyrights for works that, for one reason or another, have fallen into the public domain. Te court decided that yes indeed, Congress may do so. Nothing in the US Constitution, neither the Copyright Clause nor the First Amendment, they ruled, “makes the
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public domain, in any and all cases, a territory that works may never exit”.
In October 2011, just before this case was argued, I sought to frame the historical rationale by which the opposite opinion might be argued. I here reproduce a version of that argument and follow it with a comment on the court’s contrary ruling.
Te public’s unfettered use of such works is not the only thing that Congress compromised. Important freedoms were, and are, also threatened. Copyright law in its earliest days was designed not just to give authors their due but also to assure public access to what had previously been a decidedly un-free press. When printing first arose in Europe it was almost always controlled by the state. In 17th-century England, for example, licensing laws stood in the way of all supposedly offensive books and the Crown gave publishing monopolies to favoured printers who then dutifully provided a second ring of censorship.
Tis system began to break down late in the century under pressure from Protestant intellectuals. In 1694, when a new licensing act was being debated in parliament, John Locke wrote to oppose both the act and the Crown
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