Why The Golan Case Matters: Pulling Works From The Public Domain Is A Massive Tax On Culture

from the a-big-problem dept

We've been covering the "Golan" case through the courts for quite some time now. This is an important case concerning the contours of copyright law and the locking up of the public domain. If you don't recall, the case involved whether or not it violates the Constitution to pull content out of the public domain. Certain foreign works that were in the public domain were put back under copyright due to a trade agreement the US signed a while back. Many who relied on those public domain works were left out in the cold. A district court agreed that this appeared to violate the First Amendment. However, the appeals court went the other way, with some troubling arguments about how it was okay to pull works out of the public domain, effectively because US copyright holders insisted that without this, foreign countries would "retaliate" against them, and thus it was okay for Congress to make this call. The Supreme Court has now agreed to hear the case.

The case is important for many different reasons, including helping to establish just what the "traditional contours" of copyright law are -- which is of key importance, because the Supreme Court has declared that copyright can't be expanded past the traditional contours without leading to greater Constitutional scrutiny. However, one thing we've noticed, is that copyright maximalists in our audience have brushed aside the Golan case as a minor concern because it impacted just a few works (foreign works) that most people probably didn't care about anyway.

Thankfully, there's an excellent piece at The Chronicle of Higher Education that both tells the story of Professor Lawrence Golan himself, and why this case matters, noting how the locking up of these works has serious impact on musicians around the country, effectively cutting off important pieces of culture from their repertoire:
That may sound abstract, but the impact on Mr. Golan was direct. When a work is in the public domain—that Puccini opera, say—an orchestra can buy the sheet music. Symphonies typically cost about $150. And the orchestra can keep those pages forever, preserving the instructions that librarians laboriously pencil into scores. But works under copyright are typically available only for rent. And the cost is significantly higher: about $600 for one performance. With the flip of a switch, the new law restored copyright to thousands of pieces.

For big-city orchestras like the New York Philharmonic, that change is like a "mosquito bite," Mr. Golan says. But Mr. Golan's university ensemble gets only about $4,000 to rent and buy music each year. That means it can perform some copyrighted works but must rely on the public domain for about 80 percent of its repertoire. And $4,000 is relatively generous. Other colleges might have only $500 to spend on music. When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.

Teaching suffers, too. Every year, for example, University of Denver students compete for the honor of playing a concerto, a piece in which the orchestra accompanies a solo instrument. But when a pianist wanted to audition with a piano concerto by Prokofiev, a Russian composer who died in 1953, Mr. Golan was forced to tell her no.

"It's one that any aspiring pianist needs to learn, and to have the experience of actually playing it with orchestra is phenomenal," Mr. Golan says. But "we just didn't have the money in the orchestra budget to pay the rental price."
It's great to see this case getting more (and more thorough) attention. Hopefully, the Supreme Court recognizes the significance of the case.

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  1. icon
    Nathan F (profile), 7 Jun 2011 @ 8:23am

    Re: Re: Re: Re: Re: Yes but

    "To suggest that a whole generation suffers some great harm as a result of this particular situation is a gross overstatement. My personal life (and likely yours) isn't changed one iota"

    And so you say nothing. And then one day, they come for you.. and there is no one left to say anything.

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