Elvis Presley "Magic Moments"

On January 18, 2012 in Golan v. Holder the Supreme Court upheld amendments made to the “Copyright in Restored Works” section of the U.S. Code in response to the Uruguay Round Agreements Act § 514 as per the U.S. membership in the Berne Convention. Article 18 of Berne requires countries to protect the works of other member states unless the works’ copyright term has expired in either the country where protection is claimed or the country of origin. While the U.S. upon becoming a Berne member state in 1989, notably 103 years after its formation, initially offered minimal compliance with Article 18, in 1994 when the World Trade Organization’s “Agreement on Trade Related Aspects of Intellectual Property Rights” provided a more secure forum for enforcement, Congress felt compelled to implement the amendment at issue in Golan.

Under 17 U.S.C. § 104A(h)(6)(c) copyright protection will now be granted to works protected in their country of origin, but not originally in the U.S. because either; the U.S. did not protect works from the country of origin at the time of publication; the U.S. did not protect sound recordings fixed before 1972; or the author had not complied with certain statutory formalities. Additional requirements under 17 U.S.C. § 104A(h)(6)(D) provide that the copyright-holder must have been a national or resident of an eligible country and the work cannot have been published in the U.S. within 30 days of its initial publication. The statute effectively places foreign works previously in the U.S. public domain and qualifying for restoration, as per Justice Ginsburg’s majority opinion, “prospectively… on equal footing with their U.S. counterparts.” While as Justice Breyer’s dissenting opinion notes, expert witness testimony suggested this will affect millions of works and cost millions of dollars to those using the works; his acknowledgement that “this is a dilemma of the Government’s own making,” seemingly had a major effect on the outcome of the case.

By denying for over 100 years to join a framework of international copyright, often refusing to acknowledge any international rights whatsoever and now faced with a seemingly uncontrollable estimated $16 Billion in costs of internet piracy to the movie and music industry per year; it may finally be apparent the U.S. must change its philosophy or endure a creative wasteland. Both sides acknowledge that a central economic motive of the Copyright Clause of the U.S. Constitution as Justice Ginsburg noted in Eldred v. Ashcroft is to “advance public welfare through the talents of authors and inventors.” In his dissent in Golan v. Holder Justice Breyer queries as to how this aim can be met when the statute in question seemingly “restricts dissemination… without providing any additional incentive for the production of new material. ” Acknowledging the industry experts quoted by the majority whom argue that extra profits earned by enhanced international copyright protection for U.S. artists can lead to production of new works, Breyer responds that “simply making the industry richer does not mean that the industry… will distribute works not previously distributed.”

While Justice Breyer may have a point, the music industry has continued to search for a new business model since the spawning of the digital age and as Nyasha Foy notes in Back in Black? it may still be on life support. The days of Dowling v. U.S. where bootleg Elvis Presley records can be confiscated and provide physical evidence of infringement are extinguished. While relying on reciprocity regarding royalties from other countries may be a limited venture, as the $16 billion estimate suggests, piracy is a huge factor and must be addressed with an international force or those industries still trying to adjust will have even less to offer to new artists. The music industry has long survived by merging new, more relevant artists with those publishing dollars and sales it gains from the works of the masters in all genres. While companies may not use all of the resources gained by the enforcement of the amendment to foster new and creative artists and works, it is for certain that if Congress, now with the Supreme Court standing behind it, does not attempt to mend international copyright relations, piracy will continue to strangle those new talents.