

Court OKs Removing Content From The Public Domain - LogicHoleFlaw
http://techdirt.com/articles/20100621/2320049908.shtml

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anigbrowl
This is an interesting story, but poorly reported and understood (IMO, but
IANAL). I think the court is right, which is ironic, given my extended rant
about copyright overreach only 2 hours ago
(<http://news.ycombinator.com/item?id=1453080>).

Quick-but-simplistic summary: US musicians played music of dead Russian
composer Shostakovich, which was in public domain in the US, for fun and
profit.

Meanwhile, US complains to Russia about failure to enforce US copyrights and
halt piracy there. Russia points out that those works were never copyrighted
in Russia and are thus in the (Russian) public domain. US invokes Berne
convention, saying that US copyright registration is sufficient for worldwide
recognition. Russia points out that US has cheerfully ignored Russian
copyrights. US admits Russia has a point and passes an act (URAA) to respect
foreign copyrights in US.

Shostakovich's work is no longer in the US public domain as a result:
performances infringe newly (and retroactively) established copyright.
Copyright holders demand royalties for any future use; performers balk, and
plead reliance on previous public domain status. Agreement impossible,
lawsuits launched, performers as plaintiffs claim that extension of copyright
to previously unprotected works violates 1st amendment.

-

The court decided three basic things. First, that the US government has an
interest in seeing US copyrights enforced overseas; and as this depends on
treaties which in turn mean we must reciprocally enforce overseas copyright in
the US, the government's interest in upholding international copyright
treaties trumps that of US musicians to play the music of Shostakovic without
paying any royalties.

Second, it doesn't infringe free speech insofar as it is content-neutral: the
copyright status of Shostakovic has changed not because the government wishes
to suppress performances of his music or because it hates the performers in
question, but simply because the works of Shostakovic ought not have been in
the public domain to begin with.

Why not, you ask - aren't I supposed to be against endlessly extending
copyright? Indeed I am. But Shostakovic only died in 1975. Even under shorter
grants of copyright, his work would normally be protected for many years to
come, so that his heirs or publishers could enjoy the fruits of his creativity
as he saw fit to assign his rights. The only reason for this to be overlooked,
and his work to find its way into the US public domain, is that when
Shostakovic died Russia was still part of the USSR, with whom we had no sort
of copyright arrangements because the USSR was a communist regime which did
not believe in such things anyway. Since russia is no longer communist but has
since become a signatory to the Berne convention, and since they have
retroactively extended the normal protections of copyright to works created
before the fall of communism, under the Berne treaty we have to respect that;
otherwise we would be in the curious position of saying that Shostakovic must
remain in the US public domain out of deference to the (lack of) copyright
protection resulting from the laws of the erstwhile Soviet Union.

Third, the performers dislike the fact that since the copyright has been
extended to the works of Shostakovic, the URAA means that all the copyright
holders have to do is give them a year's notice before they either pay
royalties or give up performing his work. In the UK, they say, a rights holder
must pay money to someone who relied upon a mistaken public domain
classification, to reflect the loss of income they suffer due to their sudden
inability to sell the newly-copyrighted work. The court disagreed, pointing
out that while UK law would require them to be compensated for their
inconvenience before the rights owner could start licensing the work, it would
also impose a mandatory immediate halt to their performance activity, rather
than the 12 month grace period allowed under US law - and so they are no worse
off, overall.

So in a nutshell, US performers of Shostakovic music were getting something
for nothing, because but for the composer having lived and died under
communism, his work would never have been in the public domain to begin with.
To argue otherwise would be like saying to Russians that Soviet law still
applies to all property created before 1992.

