Public Domain Challenges for Foreign Protection

Public Domain Challenges


Musicians Beware!

This could be a monumental decision for all who perform music (like orchestras) or all who publish and distribute foreign material that is considered “Public Domain.”  Have you ever wondered about all of the songs that are performed in the public that came from foreign composers or have been performed over and over?  Suppose there is a remake of a film?  It cold be say a comic book from early 1900s (copyright expired) or a musical composition or opera.  Are they considered copyrighted material if rights of copyright were to be restored by a US Court?

The Berne Convention for the Protection of Literary and Artistic Works, of which the US is a member, sets the tone and parameters for copyright law; no rights were extended to foreign material entering the United States that were already in the public domain.  The Berne Convention treaty asserts that each member must extend the rights and protection of copyright to each other member of the convention.

Basically, in a nutshell, if the Supreme Court grants restored copyrights for these types of works, the United States can no longer use them “free” or in the public domain.  American composers, playwrights and directors, opera producers and movie “remakes” will have to comply with copyright licensing and rights issues.

The US Supreme Court will hear Golan v. Holder to see if the United States will be compelled to extend the rights of protection enacted from Section 514 of the Uruguay Round Agreement to enter into the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) in 1994 that required the United States to implement the restoration that was encompassed by Section 514 of the URAA.

The case has gone back and forth in appeals, but it is important to note that the court focused on one basic issue, protecting and obtaining legal protections for American copyright holders’ interests abroad.

In the meantime, American symphonies, operas and publishers using old foreign material as their base of performance had better beware until the Supreme Court hears the case this fall (2011).

Court of Appeals for the Tenth Circuit, 609 F.3d 1076 (21 June 2010)