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Artistic Judgment: How the Supreme Court Will Soon Decide How Much Access We Have to Art

Dmitri Shostakovich is currently on trial in the Supreme Court. So are Fritz Lang, Sergei Prokofiev, and Astrid Lindgren, creator of Pippi Longstocking. For years, these artists’ works, and many others like them, were readily and freely available to American audiences. Now they’re tied up in legal limbo, and it’s up to the Supreme Court to decide what their fate—and the fate of the people who would like to experience them—will be. 

The reason that these artworks were previously accessible was that no clear copyright legislation existed to protect the rights of foreign writers, composers, and filmmakers. This meant that orchestras could play the Leningrad symphony, film distribution companies could put out new copies of Lang’s Metropolis, and Walt Disney could produce an animated version of Peter and the Wolf without paying Prokofiev. 

That all ended in 1994: Hoping to convince other countries to protect American intellectual property more strictly, Congress passed the Uruguay Round Agreements Act as part of a larger multinational trade agreement signed in Punta del Este, Uruguay. The agreement awarded copyrights to works, like the ones listed above, that were created by foreign artists and that had previously been unprotected by U.S. law. It was designed to be an implicit quid pro quo: We’ll cover your copyrights, you’ll cover ours. 

It hasn’t worked out that way. More than a decade later, there’s still no widely accepted universal standard of copyright protection, leaving each country to act as it pleases. While a movie theater in London will pay American distributors for the right to screen the latest Hollywood film, for example, a cheap, pirated version of the same movie would likely be available that same day in the Idumota market in Lagos; the Nigerian authorities, zealously guarding the interests of local filmmakers against pirated versions of their own creations, would very likely pay no attention to a bootlegged copy of the latest Brad Pitt film. With no single, international body enforcing the various global copyright agreements in existence, compliance is uneven and uncommon. 

Those who do comply—like the United States—find themselves tangled up in restrictions that the makers of the law never considered. American librarians who wish to offer free electronic editions of works that had been widely enjoyed for years, now must request permission; academics who want to cite extensively from works that were once freely available, now have to pay permission fees for the privilege. 

Some have rebelled: Earlier this month, the Supreme Court heard oral arguments in Golan v. Holder, a case brought forth by a group of scholars eager to repeal the Uruguay act. The plaintiffs’ primary argument is that retroactively implementing copyright protection is unconstitutional and threatens the very notion of the public domain. If the Justices reject this argument, we would lose much more than the right to free Pippi: At stake here is the concept, advanced by the Founding Fathers, that a culture can only thrive if society weighs the individual’s right to intellectual property against the public’s right to knowledge. 

These twin interests were on James Madison’s mind when he drafted, together with Charles Pinckney of South Carolina, what would eventually become Article I, Section 8, Clause 8 of the United States Constitution, empowering Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The clause is a neat bit of tightrope-walking, acknowledging the importance of copyright protection, but only for a certain period of time. Madison et al believed that for the public to be educated, writings—unlike buildings or fields or horses—should only belong to their creators for so long before being made available to all for free. 

Seen in this light, the Uruguay act is more than just bad legislation. By placing thousands of formerly free foreign works under what, barring the Supreme Court’s intervention, is likely to be decades of protection, Congress has dulled that most important instrument of edification and innovation, the public domain. The consequences of the act go beyond the philosophical: Getting back to Shostakovich, while no concrete data exist, it’s very likely that the Russian genius is played far less often as a result of the 1994 legislation. As the Chronicle of Higher Education reported earlier this year, “When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.” This means that orchestras that aren’t very rich—which is to say, the majority—can now only offer their audience a limited program, from which the giants of Russian modernism are sorely absent. Similarly stifled are Mexican folk singers: The library of the University of California, Los Angeles maintains a collection of more than 100,000 recordings of Mexican folk music, the use of which is now restricted to those able to visit the library in person. Preparing a collection of children’s songs from around the world, author Kevin Cooper was forced to exclude many that were previously squarely in the public domain, settling instead on a narrower and far less diverse edition. These examples, and numerous others, appear in an amici curiae brief filed in support of the plaintiffs by the American Library Association, the Association of College and Research Libraries, and other interested parties.  

One could argue, of course, that such restrictions are dwarfed by the need to properly compensate artists for their work. Why, to paraphrase a question posed by Justice Ruth Bader Ginsburg, should Shostakovich not be entitled to the same protections Aaron Copland had enjoyed, simply because one was born in St. Petersburg and the other in Brooklyn? The plaintiffs’ answer—and the philosophical axis around which much of the case revolves—is that the constitution calls for a limited term of copyright protection, and that even no time at all still qualifies as a limited term. The trajectory, they argue, is simple: A work of art is created, and is eligible for copyright coverage. Copland, according to the laws prevalent when he composed his works, received a few decades’ worth; Shostakovich, according to the same laws, received zero days. Both terms are, strictly speaking, limited terms, and once the works have entered the public domain, retroactively removing them would set a dangerous, unconstitutional precedent. 

If this argument seems like a bit of sophistry—and some justices seem to have raised an eyebrow at the no-time-equals-limited-time claim—its adherents are quick, and correct, to note that regardless of one’s interpretation of the letter of the law, the spirit of our copyright laws has always leaned toward support of the common good—roughly equated with an open public domain. This has been true from Madison onward; copyright’s purpose, the constitution is careful to note, is primarily “To promote the Progress of Science and useful Arts,” not to safeguard the financial interests of content creators. Restricting the availability of works to the American public in order to compensate the heirs of long-dead foreign artists is a blatant violation of this spirit. 

The court will soon deliver its opinion. Much hangs in the balance. Let us hope for one solid victory for the public. 

Liel Leibovitz is an assistant professor of communications at New York University teaching about copyright, commerce, and culture.