Music, theater, art, film and literary interests are split over the potential impact. In music for instance, 'covering' or referencing the work of other musicians, especially popular in contemporary music, could become a minefield of rights battles. Even Supreme Court Chief Justice John Roberts, considered by many the most radically conservative in a century, referred to Jimi Hendrix's electronic rendition of the 'Star Bangled Banner' in his questions to the competing counselors.
As the value of intellectual property becomes more apparent, the battle of the bands on either side will become more intense. JL
Jess Bravin reports in the Wall Street Journal:
Supreme Court justices riffed on artists from Shostakovich to Jimi Hendrix in arguments Wednesday about whether Congress can grant copyrights to works by foreign authors never before protected in the U.S.
The potential stakes are huge, and again pit old industry against new. The publishing and movie industries say that robust enforcement of foreign copyrights in the U.S. is essential to ensuring reciprocal protection of their copyrights overseas. But Google Inc., which has digitized millions of public domain works and placed them online, says its investment could be jeopardized, and public access to important books, music and art impeded, if the government prevails
In 1994, Congress sought to give protection to foreign works, part of an effort to implement the Berne Convention, a treaty that gives U.S. works reciprocal protection overseas. As Justice Ruth Bader Ginsburg put it, Congress simply decided that "Shostakovich should be treated just like Copland," referring to the 20th century Russian composer and his American contemporary.
Granting copyright removes a work from the public domain, where anyone is free to republish, perform or build upon it. In other words, "what about Jimi Hendrix?" asked Chief Justice John Roberts, noting that the late guitarist's "distinctive rendition of the national anthem" at Woodstock interpreted a public domain work, "The Star-Spangled Banner," without obtaining permission or paying royalties.
While the Hendrix question was hypothetical, it pointed to a consequence of the 1994 law: Works that long had been available to all, potentially including some by Picasso, Nabokov and J.R.R. Tolkien, could suddenly be withdrawn if the owners assert their ownership.
A group including musicians, filmmakers and archivists who rely on public domain works challenged the law, both for exceeding Congress's power to grant copyrights and for infringing their own First Amendment free speech rights.
The 1994 law applies only to works that were never copyrighted under old U.S. copyright law. Currently, all foreign artists receive the copyright protection they get in their home countries.
The Constitution authorizes Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The plaintiffs' attorney, Anthony Falzone of Stanford Law School, said that once a copyright's "limited time" expires, a work permanently enters the public domain. But because the foreign authors didn't have copyrights at the outset, he argued, Congress can't extend them now.
Justice Ginsburg, who wrote a separate 2003 ruling upholding Congress's decision to extend existing domestic copyrights by 20 years, said there was a difference between restoring copyrights that had expired and granting copyright for the first time, as she said the 1994 law did.
Solicitor General Donald Verrilli, defending the law, said it brought the U.S. into a convention that can protect American intellectual property abroad and amounted to "the price of admission to the international system."
Several justices, however, doubted that taking books and music by long-dead authors out of the public domain could promote the "progress" the Constitution sought to spur through copyright.
Justice Stephen Breyer, who dissented from the 2003 domestic-copyright case, said the government's position could undermine scholarship and preservation if researchers end up being forced to hire lawyers to track down owners or risk ignoring the law.
He cited the example of a group that seeks to preserve and publish Jewish music from the early 20th century but because the Nazis destroyed Eastern Europe's Jewish communities cannot identify the copyright owners. Such projects can't be done "without their becoming scofflaws, or without their having millions of dollars to hire infinite numbers of trackers and lawyers," Justice Breyer said.
Mr. Verrilli said the plaintiffs' predictions of cultural catastrophe were exaggerated, because both the 1994 act and copyright law provided for certain uses without royalties. In the case of "The Star-Spangled Banner," for instance, "maybe Jimi Hendrix could claim fair use," Mr. Verrilli suggested
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