In 1994, Congress extended copyright protection to foreign works of art that were not previously protected by the Copyright Act. You say: “so what?” Well, in so doing, Congress made it so that you have to pay to use certain works, such as “If I Had My Way,” which were previously in the public domain. The debate has made its way to the U.S. Supreme Court, where arguments were heard last week in Golan v. Holder on whether Congress has such power under the Constitution. Congress likely has such power, and there are good reasons why Congress would expand copyright protections to such works.
The legal issue before the Court in Golan is whether Congress has the power to grant copyright for the very first time to works that were not previously copyrighted at all. The plaintiffs in the case argue that if the works were not protected by copyright at the time, they cannot now be retroactively subject to copyright by Congress under the Constitution.
Congress has broad power under the Constitution to “promote the Progress of Science and useful Aerts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” As such, Congress does not have unfettered right to bestow copyright protection for however long it wants. In the plaintiff’s view, the 1994 law extends the term of copyright, which is the life of the author plus 70 years for works created on or after January 1, 1978, beyond that currently allowed.
However, there are good reasons why the passage of the 1994 law “promotes the Progress of Science and useful Arts” by extended the protective shroud of — and not the term of protection under — the Copyright Act. Under the Berne Convention, American artists get reciprocal protection for their works overseas provided their foreign artist colleagues are protected here, too. As Solicitor General Donald Verilli is quoted in Copyright Law Challenged, the 1994 law amounted to “the price of admission to the international system.”
It seems that, if Mr. Jimmy Hendrix were alive, we would likely have been in favor of the 1994 law. (Justice Roberts referred to Mr. Hendrix in oral argument.) An avid traveler to places like Essaouira, Morocco, Mr. Hendrix would have wanted his works to be protected overseas, even if that meant his foreign compatriot’s works would be provided protection here, too.