Rodney A. Smolla, President, Furman University
April 30, 2012

The Supreme Court in Golan v. Holder1 upheld Section 514 of the Uruguay Round Agreements Act (URAA),2 which granted copyright protection to preexisting works of Berne Convention member countries, protected in their country of origin, but lacking protection in the United States.  The Court in Golan rejected a challenge to Sec. 514 brought by a consortium of individuals and entities from the world of classical music, such as orchestra conductors, musicians, and music publishers, who once had enjoyed free access to works in the public domain, complaining that Sec. 514 unconstitutionally extended copyright protection to those public domain works.  In rejecting the challenge, the Supreme Court once again articulated the balance between the Copyright Clause and the Free Speech Clause of the First Amendment in a manner that effectively gave all the trumps to the Copyright Clause.

Echoing the themes from its prior decision in Eldred v. Ashcroft,3 in which the Court sustained Congress’s enlargement of the duration of copyright protection by 20 years, the Court in Golan emphasized once again that the substantive law of copyright has sufficient “built in” protections safeguarding freedom of speech to obviate the need for piling on additional legal standards protective of expression emanating from the First Amendment.  The Court in Golan thus emphasized that “some restriction on expression is the inherent and intended effect of every grant of copyright”4   The Copyright Clause and the Free Speech Clause were both the work of the original Framers of the Constitution and Bill of Rights, and those Framers reconciled the inevitable restriction on free speech that comes with the grant of intellectual property protections as well-justified by the function that copyright protection serves as an engine of free expression.  In establishing a marketable right to economically exploit expression, the Framers thus created incentives to create and disseminate ideas, thereby harmonizing the goals of intellectual property and free speech protection.5

The Court in Golan, as it had in Eldred, placed special emphasis on the idea/expression dichotomy and the fair use defense as the two classic copyright doctrines that operate in tandem to secure adequate breathing space for expression. The idea/expression dichotomy, now codified in the Copyright Act itself,6 thus disqualifies from copyright protection “any idea, procedure, process, system, method of operation, concept, principle, or discovery”7  that may be embodied in a copyrighted work.  Einstein’s theory of relativity may not be copyrighted, though his precise expression describing it may.

If the idea/expression dichotomy operates to free ideas themselves from regulation, however, that dichotomy alone will not entirely do the trick of providing adequate breathing space for free expression, because sometimes it is critical that the precise expression in a copyrighted work be repeated, in the service of critique, criticism, commentary, reporting, or teaching regarding that underlying work.  It is here that the fair use defense kicks in to augment the idea/expression dichotomy, freeing from restraint certain copyrighted expression that could otherwise not be copied without permission from the copyright holder.8

The challengers from the music world in Golan nonetheless argued that the granting of copyright protection to musical works previously in the public domain created a First Amendment problem of a higher order than the mere extension of duration approved in Eldred.  Those members of the music community argued, with fair cogency, that the idea/expression dichotomy and fair use defense were of little value to them, because what they sought was the right to perform an entire musical work unfettered by copyright restraints – works that were, after all, once in the public domain for such unfettered exploitation.  And they had a point: “Playing a few bars of a Shostakovich symphony is no substitute for performing the entire work.” 9

Even so, the Supreme Court was not persuaded.  “However spun,” the Court observed, these contentions depend on the argument “that the Constitution renders the public domain largely untouchable by Congress.”10   The Court, however, saw this as simply an “attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause.”11

Having already rejected the notion, under its interpretation of the meaning of the Copyright Clause, that there is no cogent principle forbidding Congress from creating copyright protection for works that were once in the public domain, the Court was unwilling to interpret the Free Speech Clause as imposing restrictions on Congress’s powers beyond what the Copyright Clause itself contained.  The Court thus declared emphatically that “nothing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain.”12

The only caveat reserved in Golan, a caveat that had also been reserved in Eldred, was the possibility that broader First Amendment principles might void an exercise of Congress’s copyright power if that copyright power was used to transgress “a generally applicable First Amendment prohibition.”13   The First Amendment thus most powerfully forbids viewpoint discrimination.  If viewpoint discrimination were to infect copyright law – if Congress were to grant longer copyright protection to works advancing the political agenda of Democrats over those of Republicans, for example – the trumps would revert to the First Amendment, and the law would surely be struck down.14

Congress, the Court in Golan noted, “recurrently adjusts copyright law to protect categories of works once outside the law’s compass.”15  Congress, the Court held, may grant such protection without “hazarding heightened First Amendment scrutiny.”  It was not, after all, that orchestras may no longer play Prokofiev’s “Peter and the Wolf,” but only that they must now pay to play, as they must for the more recent works of Aaron Copland or Leonard Bernstein.16

“Congress,” the Court concluded, “determined that U.S. interests were best served by our full participation in the dominant system of international copyright protection.”17   Whatever the policy pros and cons of that decision may be, the Court held, Congress is entitled to make such judgments without encountering any constitutional shoals.18