Community orchestras and others playing for youth concerts won’t do it, he said.
“To see a live performance of ‘Peter and the Wolf,’ it’s just not going to happen,” Golan said. “The cost is just prohibitive.”
Falzone said Congress went beyond its powers in 1994 when it extended protection to works that the public had come to rely on.
“For 200 years, there was no question that once something entered the public domain, it belonged to the public,” he said. “They can never be taken back.”
The U.S. Court of Appeals for the 10th Circuit disagreed. “The government has demonstrated a substantial interest in protecting American copyright holders’ interests abroad,” the three-judge panel ruled, saying there was testimony of billions of dollars lost because foreign countries were not providing copyright protection.
The trade was to provide copyright protection for foreign artists.
And it rejected the plaintiffs’ argument that their First Amendment rights had been violated, saying speech rights do not draw “such absolute, bright lines around the public domain.”
For Golan’s supporters such as Google, the prospect that Congress has the ability to shield works in the public domain will chill its efforts to use the Internet to make accessible to the public “the vast stores of human knowledge and experience recorded in books,” the company told the court.
Its brief cites as an example its agreement to digitize the 7 million books in the University of Michigan’s libraries. “Even for a large company like Google, the possibility that works in the public domain will be legislatively deemed copyrighted in the future is a daunting and complicating prospect,” the brief said.
The Supreme Court in 2003 agreed that Congress had the authority to add 20 years to the copyright life of certain works. But it did not have to decide the question of whether works in the public domain could be protected.
New Obama administration Solicitor General Donald B. Verrilli Jr., in his first argument on behalf of the government, will defend the congressional action and echo the appeals court’s reasoning.
The protected work, he said in his brief to the court, was only in the public domain because it did not receive proper copyright protection at the time. Congress made provisions that those who relied on the work in the past could continue to have limited access to it.
Although it is rare for Congress to extend copyright protection to works in the public domain, he said, the very first Congress did so. And he disputes that a First Amendment interest develops just because works that should have received protection have been “exploited” in the past.
“A person who has previously engaged in the now-proscribed conduct has no ‘vested’ right to continue to do so,” Verrilli wrote.
Golan said he understands that copyright laws provide the means of making a living for those whose creations he admires. “This is certainly not a case against copyright,” he said.
But he argues that most composers would opt for having their music available in the public domain over earning small royalties for their descendants.
“I’m pretty sure they’d want their music played,” he said.
The case, Golan v. Holder , will be heard by an eight-member court because Justice Elena Kagan is recused. A tie would uphold the 10th Circuit’s decision.
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