Court allows re-copyright of public domain works

WASHINGTON - The Supreme Court upheld a law Wednesday giving U.S. copyright protection to paintings by Pablo Picasso, films of Alfred Hitchcock, music from Igor Stravinsky and millions of other works by foreign artists that had been freely available.

The justices said in a 6-2 decision Wednesday that Congress acted within its power when it extended protection to works that had been in the public domain. The law's challengers complained that community orchestras, academics and others who rely on works that are available for free have effectively been priced out of performing "Peter and the Wolf" and other pieces that had been mainstays of their repertoires.

The case concerned a 1994 law that was intended to bring the U.S. into compliance with an international treaty on intellectual property. Without it, American artists might have found it hard to protect their work in certain countries that lacked specific copyright arrangements with the United States.

The law requires people to ask permission or pay royalties before copying, playing or republishing foreign works that previously could not have been copyrighted in the United States.

"Neither congressional practice nor our decisions treat the public domain, in any and all cases, as untouchable by copyright legislation. The First Amendment likewise provides no exceptional solicitude for works in the public domain," Justice Ruth Bader Ginsburg said in her opinion for the court.

The court had ruled back in 2003 that Congress may extend the life of a copyright. Wednesday's decision was the first time it said that published works lacking a copyright could later be protected.

A year later, Congress adopted legislation to align with an international copyright treaty known as the Berne Convention, which is an agreement to provide a minimum level of copyright protection for all foreign works. Wired reported that the Convention included protecting property if is still copyrighted in its country of origin, prompting congress to re-protect foreign works that may have lost their copyright in the U.S.

But Justice Stephen Breyer, writing for himself and Justice Samuel Alito, said that an important purpose of a copyright is to encourage an author or artist to produce new work. "The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works," Breyer said.

According to Wired, a petition by a group of orchestra conductors, educators, performers, publishers and film archivists has been started, asking the court to reconsider their decision. They argue that by allowing works to be re-copyrighted from the public domain, it infringes on the free speech rights of people who had previously been using the works.

Justice Elena Kagan did not take part in the case because she worked on it while serving in the Justice Department.

The case is Golan v. Holder, 10-545.