Thursday, February 23, 2012


As previously reported here, the Supreme Court considered whether Congress had the right under Section 514 of the Copyright Act to provide copyright protections for works that were previously in the public domain because: (1) the U.S. did not offer protection to works form the country of origin when first published; (2) sound recordings were not protected before 1972; or (3) a formality under U.S. copyright law was not met (such as failure to include copyright notice prior to 1989).

The Petitioners included those who used the works that were previously in the public domain due to one of the three reasons listed directly above. Petitioners argued that Congress did not have the right to remove works from the public domain under the Copyright Clause or under the First Amendment.

The Court decided that Congress did have the right to enact Section 514 removing works from the public domain. The Court rejected Petitioner’s argument that the “limited times” portion of the Copyright Clause of the Constitution relying heavily on its precedent in Eldred (upholding the extension of the term of copyright). The majority also relied on instances where Congress previously granted protection to works that were not protected or in the public domain such as the Copyright Act of 1790, several acts in the mid to late 1800’s and patent statutes.

The majority was also deferential to Congress in weighing the political choice of joining and complying with an international treaty and removing works from the public domain. The Court found that Congress was well within its authority under the Copyright Clause to enact Section 514 and making the decision to adhere to the Berne Convention for the purposes of reciprocation of rights with other member countries. The Court did not find that the action of retroactively removing works from the public domain did not overstep Congressional authority to promote the Progress of Science and the Useful Arts. Another factor for the Court was that Section 514 provided remedial measures to avoid immediate impact of copyright infringement actions for those in a similar position to Petitioners who relied on the works being in the public domain.

As to Petitioner’s First Amendment Claim, the Court noted that both the Copyright Clause and the First Amendment were enacted close in time and that copyright did and was intended to restrict expression under the First Amendment. The Court also noted that there are safeguards built into the Copyright Act that accommodated the First Amendment such as fair use and the idea/expression dichotomy. Because such safeguards are already provided in copyright law, the Court found that there was no need for heightened review based on the First Amendment.

Contrary to the Petitioner’s position, the Court dispelled the notion that the public had vested ownership rights once the work falls in the public domain. (“Once the term of protection ends, the works do not revest in any rightholder. Instead the works simply lapse into the public domain.”)

In addition, Section 514 does not prohibit defenses such as fair use nor their application to these works which have been removed from the public domain.

[As an interesting aside, the Court’s opinion also references the Google Book settlement case and states that addressing issues such as orphan works are more appropriate for Congress to resolve than the Courts.]

The majority also sidesteps some of the dissent’s questions about orphan works by simply claiming that a resolution about orphan works is not necessary to resolve whether retroactively removing works from the public domain to comply with the Berne Convention is within the Constitutional authority granted to Congress.

Thursday, February 2, 2012

A Statutory Medical Copyright License?

While it is well known that there is a statutory license for use of music (Section 112 (e) and 114(d)(2) of the Copyright Act), many other license agreements are reached with royalty payments scheduled. (For example, YouTube's agreement with the National Music Publishers Association)

Understandably, statutory licensing schemes usually resolve complex issues. Given the recent uproar over SOPA and PIPA, maybe Congress could focus on something a little less controversial.

I came across this recent article regarding a copyright dispute over cognitive screening tests.

While such works may receive copyright protection, I do not believe that anyone wants to face copyright liability for administering what may be an important medical test. While some defenses such as fair use may be available, some medical professionals, or even the hospitals or companies that employ these professionals may not want to assume the risk.

In general, the government should want to encourage the creation of new screening tests and copyright creates this incentive. However, a simple licensing scheme with royalties may provide the appropriate balance so that those in the medical field may administer these tests without risking copyright infringement actions.

A statutory license could be an assessment on the patients to whom the test is administered in the form of a fixed cost. A statutory license could be assessed on the medical professional who administers the test in the form of a fixed royalty rate based on the number of times the test is used on an annual basis. A statutory license could be based on a single flat fee for use of an entire library of such tests. There are hundreds of other ways in which Congress could devise such a statutory license. (Perhaps the most difficult task would be to determine which tests qualify for medical screening tests.)

I think this is a proposed legislation that Congress could pass with relatively little opposition.