Golan v. Holder is a case that involves Golan, a university music professor challenging a statute that makes it financially burdensome for smaller orchestras to purchase and perform certain musical pieces. Orchestras that were once able to purchase sheet music for about $150 are now required to rent sheet music for $600 per performance. See article here. In a broader sense, the issue of the case involves the constitutionality of copyright restoration efforts for foreign works that were readily available in the public domain up until the mid 1990s. For an explanation of the criteria, you may want to visit this site.
Golan v. Harder requires consideration of the true purpose of copyright, a more careful examination of the statutes pertaining to fair use, and a closer look into the implications of copyright restoration. First of all, the true purpose of copyright as defined in the Constitution is, “To promote the Progress of Science and useful Arts” and to reward innovation, but for a limited span of time so as to avoid a monopoly over information in the public domain. The statutes pertaining to copyright also express an intent to protect and promote expression. Secondly, Section 107 of the Copyright code highlights that limits to copyright exclusions do exist (defense of fair use). Fair use allows for the reproduction of works without copyright holder permission if for the purpose of issuing 1) criticisms, 2) comments, 3) news, (or education-related purposes) 4) teaching/distributing works in a classroom, 5) scholarship, 6) research. As claimed by Golan, instructors like him are prevented from teaching and sharing particular pieces to their students, such as the canonical works from the 20th century Russian pieces that he could have once-upon-a-time played freely. Imposing greater transaction costs by means of copyright restoration inevitably hampers creativity and progress.
The holding for Golan v. Holder would also affect the way in which cases for digitalizing other foreign works would be handled. As it stands, the digitalization of text faces great controversy since ownership of many works are difficult to determine (for insight on the matter, read about Google’s endeavor to digitalize book). Some believe that information should be put into public domain regardless of existing copyright. Others believe that since ownership is difficult to determine, then information should not be entered into public domain until ownership is established.
Golan v. Holder and copyright restoration issues are important to think about because they present concerns about the effects on teaching and research quality. Restoring copyright to original copyright holders and increasing transaction costs for people who wish to access copyrighted materials may actually limit the free flow of information (which runs contrary to the Constitution and its framers’ goals). Copyright restoration, in many ways, also allows a copyright holder to maintain a monopoly over information for a much longer time, thus inhibiting progress in the arts and science, which is precisely what Golan argues is wrong.
The questions raised about the law in Golan v. Holder are: “Does Congress have the constitutional right to remove works from the public domain? And if it does, what stops it from plucking out even more freely available works?”
It should be the case that once information is made accessible in the public domain, it should remain accessible in the public domain. If the case were to be decided using Rural v. Feist and codes on copyright discussed in class for this section, the Supreme Court would rule in favor of Golan. The goal of copyright is to promote progress in the arts and sciences. Copyright restoration appears to preclude this desired progress by increasing the transaction costs that the public must shoulder in order to use works that were once already in the public domain. Moreover, even with extended copyright protections, those who wish to use the works may do so with the defense of fair use. Golan uses and accesses sheet music for the purposes of scholarship, teaching his students and encouraging them to perform. These endeavors are covered under fair use.
The problem that arises from the law’s interaction with technology and society stems from its desire to reward exclusive rights to creators of works that are, by nature, excludable and rival. However, it is the case that many works that were once excludable are now being made non-excludable and non-rival by means of digitalization or unregulated replication. With this phenomenon, government struggles to reappropriate ownership of the work to the original creator. While exclusive rights may benefit some copyright holders (who are easy to find and alive), it deeply burdens those who would otherwise benefit greatly from being able to access copyrighted works or works in the public domain. Restoring copyright to original copyright holders may not necessarily be efficient or beneficial to society. In fact, copyright restoration may have damaging effects or, at the very least, in essence, run contrary to the goal of copyright.