In a 6-2 ruling handed down yesterday, the U.S. Supreme Court effectively asserted that works that fall into the public domain may be pulled back under copyright protection by an act of Congress. In the decision [PDF] for Golan v. Holder, Justice Ruth Bader Ginsburg, writing for the majority, upheld a 1994 federal law that had taken some foreign-made works, first published abroad between 1923 and 1989, out of the public domain in the United States to comply with an international copyright convention. University of Denver music professor Lawrence Golan and a group of orchestra conductors, film archivists, and others, had challenged the law, claiming that Congress had exceeded its authority under the Copyright Clause. In June 2011, the American Library Association, the Association of College & Research Libraries, the Association of Research Libraries, the Internet Archive, the Wikimedia Foundation, and Paul Courant, the dean of libraries of the University of Michigan (a major participant in the HathiTrust digital repository), filed a joint amici curiae brief [PDF] in support of the plaintiffs, which read in part:

Librarians, archivists, and those who run digital repositories share Congress’s concern that U.S. authors receive fair compensation for their work. [We] respectfully submit, however, that reversing a core default principle of copyright law—that a work in the public domain stays in the public domain—impermissibly puts potential benefit to some authors ahead of the public interest.

The majority decision rejected the plaintiffs’ arguments. “Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit,” Ginsburg wrote. The decision points out that by passing the law to meet international copyright convention requirements, “Congress ensured that most works, whether foreign or domestic, would be governed by the same legal regime.” Thus, works by Russian composer Sergei Prokofiev, whose Peter and the Wolf had formerly been public-domain in the United States, could now have the same protection as his American contemporaries such as Aaron Copland, Ginsburg wrote. The law could potentially have far-reaching effects, as it asserts that works that fall into the public domain are not necessarily public-domain from then on. Congress could conceivably pass additional laws restoring copyright status to other public-domain works. In a blog post yesterday, Duke University scholarly communications officer Kevin Smith characterized the decision as a “significant defeat” for the public domain in the United States:

[P]erhaps now we are seeing, unfortunately in my view, the steady erosion of the instrumentalist view of copyright that has prevailed in the U.S. for some time, and is enshrined in our Constitution, in favor of a natural rights approach that favors those who already own rights even when that favoritism disadvantages those who would create new works.