Copyright law has given essential protections to artists as long as it has been around, allowing for a legally enforced structure within which to distribute reproductions of artwork. In recent years, with the rise in popularity of sampling and appropriation, it has also been seen as a major obstacle to many artists. Hence the rise of ‘copyleft‘ and Creative Commons, which created a sub-structure within existing copyright laws allowing for certain kinds of reuse and redistribution, while keeping ownership of the work in the hands of the original artist.

Meanwhile, publishing companies, who see copyrighted work as their lifeblood, have struggled to extend and strengthen copyright laws. We have seen the lifespan of a copyright extend from a modest 14 years (with the possibility for a 14 year extension) at the founding of the United States to the entire life of the artist plus 75 years today.

Recently, however, free speech and free culture advocates have been trying to fight back the rising tide of copyright regulations. A major decision was handed down yesterday by the 10th Circuit Court of Appeals regarding these expansions of copyright. They relate specifically to the Uruguay Round Agreements Act (URAA) enacted under Bill Clinton. This act placed certain foreign works under US copyright which had previously been considered part of the public domain in the US. The 10th Circuit found in Golan v. Gonzales that taking works out of the public domain retroactively is unconstitutional requires further scrutiny, invalidating this section of the URAA remanding the URAA to the District Court for First Amendment review.

Lawrence Lessig (who argued the case) believes that this will have major implications for the Supreme Court review of another case, Kahle v. Gonzales, which seeks to overturn the shift from opt-in copyright to opt-out copyright (that is, it used to be that you had to specifically mark something as copyrighted to take it out of the public domain; now, works are copyrighted by default unless the creator specifically chooses to place it in the public domain). More analysis of this important decision can be found at Balkinization.

These decisions have potential to move the balance closer to the ‘culture wants to be free’ side of things, and further from the ‘culture is property’ side, limiting the kinds of laws Congress can pass to further lock down the free flow of information and art.

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