Copyrights on Foreign Works Upheld by U.S. Supreme Court

The U.S. Supreme Court (1000L) upheld a federal law that gave copyright protection to millions of foreign-produced books, movies and musical pieces and may undermine Google Inc. (GOOG)’s effort to create an online library.

Today’s 6-2 ruling backs a law that took works by Alfred Hitchcock, Pablo Picasso, Igor Stravinsky and J.R.R. Tolkien out of the public domain, barring use without permission of the copyright owner. The decision is a victory for the film and music industries and a setback for Google, which had said it would lose access to many of the 15 million books it wants to make available online.

The court rejected arguments from orchestra conductors, educators, performers, film archivists and movie distributors. They argued that the 1994 law violates the constitutional provision that lets Congress set up a copyright system, as well as the Constitution’s free-speech guarantee.

“We have no warrant to reject the rational judgment Congress made,” Justice Ruth Bader Ginsburg wrote for the majority. Justices Stephen Breyer and Samuel Alito dissented, and Justice Elena Kagan didn’t take part in the case.

The statute aimed to harmonize U.S. copyright law with rules in other countries. The measure applied to works that had been excluded from the American copyright system for various reasons, in some cases because the U.S. didn’t have copyright relations with the author’s home country and in other cases because the U.S. hadn’t yet recognized copyrights on sound recordings.

Picasso and Stravinsky

The law gave rights-holders the copyright protection they otherwise would have had. Affected works include Tolkien’s “The Hobbit,” hundreds of Picasso paintings, several Hitchcock films and the music of Stravinsky, Dmitri Shostakovich and other Russian composers.

Congress approved the law to meet obligations stemming from the so-called Uruguay Round of international trade talks. The motion-picture and music industries pushed for the provision to secure reciprocal copyright protection for American works abroad.

Ginsburg said that was a legitimate goal under the Constitution’s copyright clause, which she said lets Congress focus on encouraging the distribution of existing works, as well as the creation of new ones.

“Congress determined that U.S. interests were best served by our full participation in the dominant system of international copyright protection,” Ginsburg wrote. The Obama administration defended the law.

No New Works

In dissent, Justice Stephen Breyer said the law would limit the dissemination of works without creating any incentives for new ones.

The law “does not encourage anyone to produce a single new work,” Breyer wrote. “By definition, it bestows monetary rewards only on owners of old works -- works that have already been created and already are in the American public domain.”

Breyer said that copyright owners often would be difficult or impossible to track down, particularly in cases involving older and more obscure works that have minimal commercial value.

“How is a university, a film collector, a musician, a database compiler or a scholar now to obtain permission to use any such lesser known foreign work previously in the American public domain?” he wrote.

Copyright Power

Even if would-be users can track down the copyright owners, they may face other obstacles, said Anthony Falzone, the lawyer who represented the challengers to the law.

“It’s not always just a matter of writing a check,” Falzone said. “Copyright owners can say, ‘No, we don’t want you to do that. Forget about price -- we don’t want you to do it.’”

Ginsburg said those issues were “hardly peculiar” to works affected by the 1994 law. “It similarly afflicts, for instance, U.S. libraries that attempt to catalogue U.S. books,” she wrote.

Supporters of the law said the impact will be less than opponents claim. The measure lets people who were using works before enactment of the law continue to do so until notified that a copyright owner intends to enforce.

‘Low-Cost Accommodation’

The law also says that people who’ve created “derivative works” -- those based on works that now have copyright protection -- can continue to use their creations as long as they pay “reasonable compensation.”

“For certain types of uses, there are provisions built in that create incentives for the parties to reach a low-cost accommodation for use,” said Eric J. Schwartz, a Washington lawyer who helped draft the law as an attorney at the U.S. Copyright Office.

A Google spokesman, Jim Prosser, didn’t immediately return a phone call seeking comment. In court papers, Google said the law might affect as many as a million books the company has already scanned as part of its book project.

The Motion Picture Association of America, which represents the film industry, praised the ruling.

The ruling “demonstrates that the United States fulfills its international copyright obligations and will remain a world leader in protecting creative works, thereby helping foster their continued creation and dissemination,” Fritz Attaway, the group’s executive vice president, said in a statement.

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

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net

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