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By Robert Nagle

(Filed in the I-didn’t-find-out-about-this-major-ruling-until-2-months-later department)Prokoviev

In April 2009 Nate Anderson reports on the finding:

Part of Berne requires countries to honor copyright on foreign works, so long as those works remain protected in their country of origin. Before URAA was passed, foreign works still received copyright protection in the US, but only on US terms. This meant that works began to leave copyright and enter the public domain in the US even though some were still granted copyright protection in their home countries. After signing URAA, these works reverted into copyright in the US.

Lawrence Lessig and a team from Stanford have been arguing for years in Golan v. Gonzales (now Golan v. Holder) that Congress overstepped its authority when it did this. A federal court disagreed and issued a summary judgment against Golan, a music teacher who had been freely using Prokofiev sheet music before it reverted back into copyright. But the 10th Circuit Court of Appeals said back in 2007 that the case should be reconsidered on First Amendment grounds. Last week, the federal judge who oversaw the trial changed his ruling and agreed that URAA violated the First Amendment.

How? In another famous copyright case also argued by Lessig (Eldred v. Ashcroft), the Supreme Court had found that Congressional copyright action could be overturned if it "altered the traditional contours of copyright protection." Lessig seized on this phrase, arguing that putting public domain works back under copyright was unprecedented in US law.

In other words, this affects  the Rule of the Shorter Term provision (which I wrote about several years ago). Rule of the shorter term requires countries to honor the public domain status of a work if it is already in the public domain in its country of origin.   Basically the  US government  said it didn’t need to obey the Rule of the Shorter Term provision in URAA, and the federal judge concluded that not obeying  the Rule of the Shorter Term did alter the traditional contour of copyright protection (and that was bad).

The case will likely be appealed (perhaps up to the Supreme Court again).

Here’s why this case matters to me as an ebook producer.  American laws on public domain images are totally bonkers. Lots of photographs of paintings might belong in the public domain in the US, but it’s practically impossible to determine.   However, it’s comparatively easy to verify that a  painting is in the public domain in a Berne Convention country (all you have to do is to know the death date of the creator). Golen vs. Holder lets me determine if the work was in the public domain in the country of origin. Then, I can use Bridgeman vs. Corel (an American ruling) to claim the right to use reproductions of public domain paintings  in my ebooks.  (IANAL, just a crazy writing fool).  This legal reasoning is still untested (and thus murky). But there is reason for optimism.

 
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