The Supreme Court will says it will hear a case considering whether public domain works can be pushed back into the copyright closet. And advocacy groups say that free speech is at stake in this fight. Congress' decision to uphold an international treaty allowing for public works to be "restored" into copyright will create an atmosphere of uncertainty for libraries, they warn, caretakers of the public domain.

"Because it protects our cultural commons, the public domain is equally essential, in turn, to free speech, helping to give meaning to the First Amendment right to receive information," wrote the Electronic Frontier Foundation and Internet Archive in a brief asking the Supremes to hear the matter.

"Given the large number of works in the collections of US libraries, libraries must reasonably fear that they could be sued multiple times if they continued to provide access to the materials in their collections that might be withdrawn from the public domain."

No second guessing

The case is Golan v. Holder (formerly Golan v. Gonzales). Lawrence Golan is a symphony conductor who availed himself of some manuscripts of the composer Sergei Prokofiev—that is until they reverted back into copyright, thanks to Congress's upholding Section 514 of the Uruguay Round Agreements Act.

Golan noted in his petitions that copyrighted sheet music can cost a symphony orchestra as much as $800 a performance, a prohibitive sum for a smaller ensemble. But the Uruguay agreement committed the United States to upholding a section of the 1886 International Berne convention requiring countries to uphold copyright on foreign works—if they were protected in their country of origin.

Before URAA was passed, some "foreign" works left copyright and enter the public domain in the US, even if still granted copyright protection in their home countries. After signing the URAA, these works restored to copyright in the US.

Since Golan sued, lower courts have toggled back and forth on the question of whether Congress's adherence to the treaty has harmed the First Amendment. In April of 2009 a federal judge called the move "inconsistent with the copyright scheme as designed by the Framers and as implemented by Congress in the ensuing years."

But the Tenth Circuit Court of Appeals upheld URAA in June of last year. "Plaintiffs may have preferred a different method of restoring copyrights in foreign works, but that is not what the Constitution requires;" the court panel determined, "as long as the government has not burdened substantially more speech than necessary to further an important interest, the First Amendment does not permit us to second guess Congress's legislative choice."

From Russia with love

Needless to say, EFF and the Internet Archive see URAA as a substantial burden. They cite the potential threat to the public accessibility of many popular works from the former Soviet Union, if Congress's decision is upheld.

Because no treaty existed between the US and the USSR when many of these books and musical compositions were created, they entered into the public domain here. Now they would revert to copyrighted status.

These would include works by the composers Prokoviev and Dmitri Shostakovich—among them Prokofiev's classic children's composition Peter and the Wolf. Also affected would be the novels of Vladimir Nabokov and the great anti-communist writer Alexander Solzhenitsyn.

"Currently, on the Internet Archive, one may find the works of Sergei Yesenin, Alexander Solzhenitsyn, and Marina Tsvetaeva recited aloud, books authored by [Maxim] Gorky, and music compositions made of the works of Prokofiev and Shostakovich," the two groups write. "Section 514 creates fundamental questions about these works and whether they still remain in the public domain."

The High Court will consider this case in the fall.