Law, Business and Society 11th Edition by Tony McAdams

تمرين 45

Justice Ginsburg
The Berne Convention … is the principal accord governing international copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U.S. implementation of Berne,… Congress, in 1994 [through enactment of] § 514 of the Uruguay Round Agreements Act (URAA) [, extended] copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound recordings fixed before 1972; or the author had failed to comply with … formalities Congress no longer requires as prerequisites to copyright protection.
The URAA accords no protection to a foreign work after its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by § 514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author's country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to § 514's enactment. They therefore enjoy fewer total years of exclusivity than do their U.S. counterparts. As a consequence of the barriers to U.S. copyright protection prior to the enactment of § 514, foreign works "restored" to protection by the measure had entered the public domain in this country.…
Petitioners include orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works § 514 removed from the public domain. They maintain that the Constitution's Copyright and Patent Clause, Art. I, § 8, cl. 8, and First Amendment both decree the invalidity of § 514. [All further reference to petitioners' First Amendment argument has been omitted.-ed.] Underthose prescriptions of our highest law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there.
[W]e conclude that § 514 does not transgress constitutional limitations on Congress' authority.…
I
Members of the Berne Union agree to treat authors from other member countries as well as they treat their own.… Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author's lifetime, plus at least 50 additional years, whether or not the author has complied with a member state's legal formalities. And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin.
A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted reciprocal rights to U.S. authors and whose works were printed in the United States. For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and renewal formalities.
The United States became party to Berne's multilateral, formality-free copyright regime in 1989. Initially, Congress adopted a "minimalist approach" to compliance with the Convention. The Berne Convention Implementation Act of 1988 (BCIA)… accorded no protection for "any work that is in the public domain in the United States."… Congress indicated, however, that it had not definitively rejected "retroactive" protection for preexisting foreign works; instead it had punted on this issue of Berne's implementation, deferring consideration until "a more thorough examination of Constitutional, commercial, and consumer considerations is possible."
The minimalist approach essayed by the United States did not sit well with other Berne members.… Mexican authorities complained about the United States' refusal to grant protection … to Mexican works that remained under copyright domestically. The Register of Copyrights also reported "questions" from Turkey, Egypt, and Austria. Thailand and Russia balked at protecting U.S. works, copyrighted here but in those countries' public domains, until the United States reciprocated with respect to their authors' works.
Berne, however, did not provide a potent enforcement mechanism.…
The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne's first 21 articles. The WTO gave teeth to the Convention's requirements: Noncompliance with a WTO ruling could subject member countries to tariffs or cross-sector retaliation. The specter of WTO enforcement proceedings bolstered the credibility of our trading partners' threats to challenge the United States for inadequate compliance with Article 18.
Congress' response to the Uruguay agreements put to rest any questions concerning U.S. compliance with Article 18. Section 514 of the URAA extended copyright to works that garnered protection in their countries of origin, but had no right to exclusivity in the United States for any of [the previously listed] three reasons.…
… Copyrights "restored" under URAA § 514 "subsist for the remainder of the term of copyright that the work would have otherwise been granted … if the work never entered the public domain." Prospectively, restoration places foreign works on an equal footing with their U.S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultaneously.…
The URAA's disturbance of the public domain hardly escaped Congress' attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following § 514's enactment.…
In 2001, petitioners filed this lawsuit challenging § 541.…
II
We first address petitioners' argument that Congress lacked authority, under the Copyright Clause, to enact § 514. The Constitution states that "Congress shall have Power… [t]o promote the Progress of Science … by securing for limited Times to Authors … the exclusive Right to their … Writings." Art. I, § 8, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents.
… Petitioners' contrary argument relies primarily on the Constitution's confinement of a copyright's lifespan to a "limited Tim[e]." "Removing works from the public domain," they contend, "violates the 'limited [times' restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires."
Our decision in Eldred [v. Ashcroft] is largely dispositive of petitioners' limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copyrights [in the Copyright Term Extension Act (CTEA)]. Ruling that Congress acted within constitutional bounds, we declined to infer from the text of the Copyright Clause "the command that a time prescription, once set, becomes forever 'fixed' or 'inalterable.'" "The word 'limited,'" we observed,… is best understood to mean "confine[d] within certain bounds," "restrain[ed]," or "circumscribed."…
The terms afforded works restored by § 514 are no less "limited" than those the CTEA lengthened. In light of Eldred, petitioners do not here contend that the term Congress has granted U.S. authors-their lifetimes, plus 70 years-is unlimited. Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally "circumscribed" and "confined."…
The difference, petitioners say, is that the limited time had already passed for works in the public domain. What was that limited term for foreign works once excluded from U.S. copyright protection? Exactly "zero," petitioners respond. We find scant sense in this argument, for surely a "limited time" of exclusivity must begin before it may end.…
Historical practice corroborates our reading of the Copyright Clause to permit full U.S. compliance with Berne.…
On occasion … Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Before the Act launched a uniform national system, three States provided no statutory copyright protection at all. Of those that did afford some protection, seven failed to protect maps; eight did not cover previously published books; and all ten denied protection to works that failed to comply with formalities. The First Congress, it thus appears, did not view the public domain as inviolate.…
Congress has also passed generally applicable legislation granting patents and copyrights to inventions and works that had lost protection. An 1832 statute authorized a new patent for any inventor whose failure, "by inadvertence, accident, or mistake," to comply with statutory formalities rendered the original patent "invalid or inoperative." An 1893 measure similarly allowed authors who had not timely deposited their work to receive "all the rights and privileges" the Copyright Act affords, if they made the required deposit by March 1,1893. And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain during World Wars I and II.…
Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Congress with extraordinary situations. Yet the TRIPS accord, leading the United States to comply in full measure with Berne, was also a signal event. Given the authority we hold Congress has, we will not second-guess the political choice Congress made between leaving the public domain untouched and embracing Berne unstintingly.
Petitioners' ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to "promote the Progress of Science and useful Arts" by enacting systems of copyright and patent protection.…
The "Progress of Science," petitioners acknowledge, refers broadly to "the creation and spread of knowledge and learning." They nevertheless argue that federal legislation cannot serve the Clause's aim unless the legislation "spur[s] the creation of… new works."…
… In Eldred,… we held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause "empowers Congress to determine the intellectual property regimes that, overall, in that body's judgment, will serve the ends of the Clause."…
… Congress rationally could have concluded that adherence to Berne "promotes the diffusion of knowledge." A well-functioning international copyright system would likely encourage the dissemination of existing and future works. Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U.S. authors and invigorate protection against piracy of U.S. works abroad, thereby benefitting copyright-intensive industries stateside and inducing greater investment in the creative process.
… Congress determined that exemplary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrantto rejectthe rational judgment Congress made.
Affirmed.
In the words of the Court, why did "Congress have reason to believe" that full compliance with the Berne Convention "would expand the foreign markets available to U.S. authors and invigorate protection against piracy of U.S. works abroad"? Explain.