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In a setback for educators and orchestras, the Supreme Court this morning ruled that Congress can place works under copyright that were once free for everyone to use.

In a 6-2 ruling, the Court rejected a symphony conductor’s claim that it was a violation of the First Amendment and an illegal taking for Congress to give retroactive copyright protection to Prokofiev and other foreign composers whose works have been freely available for decades.

Congress decided to extend copyright to the composers and many other long-dead foreign artists as part of international trade negotiations in the 1990s.

The result was that people wishing to use works like Astrid Lindgen’s Pippi Longstocking and Jean-Luc Godard’s À Bout du Souffle must now pay royalties.

The conductor, Lawrence Golan, led artistic groups and a strange bed-fellows coalition of the ACLU and the Cato Institute in a challenge to the law.

The majority opinion, written by Justice Ruth Bader Ginsburg, echoed an earlier Ginsburg opinion from 2002 2003 which upheld Congress’ decision to retroactively extend copyright terms by 20 years:

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.'” Id., at 199. “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” […] The construction petitioners tender closely resembles the definition rejected in Eldred and is similarly infirm.

The majority went on to add that Congress has extended copyright protection to public domain works on other occasions and stated that the First Amendment was not an issue, in part because “Peter and the Wolf” and other works were available in the marketplace. It concluded by stating that copyright terms are a political decision for Congress to make:

Congress determined that U. S. interests were bestserved by our full participation in the dominant system of international copyright protection. Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches.

In an unusual conservative-liberal pairing, Justices Stephen Breyer and Samuel Alito joined in dissent. After providing an historical overview of copyright in the United States, Breyer wrote that the purpose of the law is intended to provide incentives not recognize European ideas of “natural rights.” He stated that the recent law is unconstitutional because it does not provide any incentive to create new works:

But does the Clause empower Congress to enact a statute that withdraws works from the publicdomain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural pur- poses-all without providing any additional incentive for the production of new material? That is the questionbefore us. And, as I have said, I believe the answer is no.

For most of the 20th century, copyright in the United States lasted for a renewable 28 year term for a total of 56 years. In recent years, it has since been extended to the life of an author plus 70 years, meaning that a novel written by a young author today is likely not to enter the public domain for more than a century.

A PDF copy of the Court’s decision in Golan v. Holder can be found here.