Fighting for the Public Domain

Yesterday, the Electronic Frontier Foundation (EFF) filed an amicus (“friends of the court”) brief in Golan v. Holder, a case of great importance before the Supreme Court that will affect our understanding of the public domain for years to come. The EFF is representing the Wikimedia Foundation in addition to the American Association of Libraries, the Association of College and Research Libraries, the Association of Research Libraries, the University of Michigan Dean of Libraries, and the Internet Archive.

This case raises critical issues as to whether Congress may withdraw works from the public domain and throw them back under a copyright regime.  In 1994, in response to the U.S. joining of the Berne Convention, Congress granted copyright protection to a large body of foreign works that the Copyright Act had previously placed in the public domain.  Affected cultural goods probably number in the millions, including, for example, Metropolis (1927), The Third Man (1949), Prokofiev’s Peter and the Wolf, music by Stravinsky, paintings by Picasso, drawings by M.C. Escher, films by Fellini, Hitchcock, and Renoir, and writings by George Orwell, Virginia Woolf, and J.R.R. Tolkien.

The petitioners are orchestra conductors, educators, performers, film archivists, and motion picture distributors who depend upon the public domain for their livelihood.  They filed suit in 2001, pointing out that Congress exceeded its power under the Copyright Clause and the First Amendment of the U.S. Constitution.  They eventually won at the district court level, but that decision was overturned on appeal in the Tenth Circuit.   The U.S. Supreme Court – which rarely grants review – did so here.

Petitioners filed their brief last week, and you can find it here. We are expecting a number of parties to file “friends of the court” briefs.   The EFF’s brief can be found here.

The Wikimedia Foundation joined the EFF brief in light of the tremendously important role that the public domain plays in our mission to “collect and develop educational content under a free license or in the public domain, and to disseminate it effectively and globally.”  We host millions of works in the public domain and are dependent on thousands of volunteers to search out and archive these works.  Wikimedia Commons alone boasts approximately 3 million items in these cultural commons.  To put it bluntly, Congress cannot be permitted the power to remove such works from the public domain whenever it finds it suitable to do so.  It is not right – legally or morally.   The Copyright Clause expressly requires limits on copyright terms.  The First Amendment disallows theft from the creative commons.  Such works belong to our global knowledge.  For this reason, we join with the EFF and many others to encourage the Court to overturn a law that so threatens our public domain – not only with respect to the particular works at issue but also with respect to the bad precedent such a law would set for the future.

We anticipate the Court will reach a decision sometime before July 2012.

Geoff Brigham
General Counsel, Wikimedia Foundation

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2 Comments on Fighting for the Public Domain

Sinigagl 4 years

Which Supreme Court, which Congress? Rmember that you are speaking to the world, not only to US people.

pfctdayelise 4 years

Bravo WMF for fighting this fight.

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