U.S. Supreme Court Throws Public Domain Under the Bus: Copyrights Can Be Applied to Longstanding Public Domain Works Under Berne Convention

In the often-confusing area of copyright, there was one bright line: works that had entered the public domain.  Find an image or a quote within the public domain and you never got to the question of copyright:  are you infringing?  is your work fair use?  It was black and white, night and day: once a work entered the public domain, there were no copyrights to respect - the copyrights had evaporated, and the works were free for anyone to use at any time.  Sweet. 

Until now, because that bright line just got fuzzy.  The United States Supreme Court has just ruled that Congress can take works in the public domain and slap them with a copyright.  Again.  This is true even if the work has been floating around in the public domain for years and years. 

Golan v Holder

Read the full opinion in Cause No. 10-545 before the United States Supreme Court, Golan et al v. Holder, -- U.S. -- (2012) here.  It's a six to two decision; Ginsburg writes for the majority; Breyer and Alito dissent; Kagan recused herself. 

Berne Convention Implementation Act of 1988

Why?  Seems the High Court believes that the United States of America must comply with a trade agreement entered into at The Convention for the Protection of Literary and Artistic Works, and signed at Berne, Switzerland on September 9, 1886.  You can read that treaty online here. 

That's because Congress already passed a federal law (the Berne Convention Implementation Act of 1988), stating that the United States must comply with "all acts, protocols, and revisions" of the  Berne Convention.  The Uruguay Round Agreements Act of 1984 amends 17 U.S.C. 104A, 109(b), and adds chapter 11 to title 17 and section 2319(a) to title 18. 

If you check the deal that is known as "the Berne Convention,"  you will find an agreement (treaty) between several nations around the world, copyrights are to be respected as long as a copyright legally exists in any of the countries that are signatories to the Berne Convention.

Read the list of countries that have signed the Berne Convention here.  Right now, there are 165 nations participating in the treaty.   

Which means that work you may have used legally on your blog - say, an excerpt from something written by Tolkein - may no longer be free for your use as public domain and now, subject to copyright.