Companies that commercially exploit sheet music and old film footage challenged the constitutionality of section 514 of the Uruguay Round Agreements Act (URAA), which implemented part of the Berne Con

Companies that commercially exploit sheet music and old film footage challenged the constitutionality of section 514 of the Uruguay Round Agreements Act (URAA), which implemented part of the Berne Convention for the Protection for Literary and Artistic Works. The section establishes copyright in various kinds of foreign works that had previously entered the public domain.

The U.S. Court of Appeals for the D.C. Circuit held on May 24 that the provision is constitutional. The following is a summary of the court's opinion.

Section 514 of the URAA establishes copyrights of foreign holders whose works, though protected under the law where initially published, fell into the public domain in the United States for a variety of reasons. In some cases the United States failed to recognize copyrights of a particular nation. In others, the owner failed to comply with certain formalities, such as placement of copyright notice on copies distributed in the United States. For sound recordings fixed before Feb. 15, 1972, federal copyright protection was unavailable even if laws in other countries protected them.

Plaintiff Luck's Music Library rents and sells classical orchestral sheet music. Plaintiff Moviecraft preserves, restores and sells old footage and films. They complained that they may no longer freely distribute certain works as a result of the URAA.

Plaintiffs argued that the Copyright and Patent Clause of the U.S. Constitution prohibits removing works from the public domain.

They first asserted that statutes must create an incentive for authors to create new works to promote the progress of science. Laws that remove works from the public domain -- rewarding prior works -- do not provide significant incentives.

The court noted that this was the "core argument" advanced against the Copyright Term Extension Act in Eldred v. Ashcroft (537 U.S. 186 (2003)). The argument lost in all of its variations, the court wrote.

While the extra incentive in reviving foreign works is "meager," the court wrote, it is not clear that the Eldred opinion required a direct incentive. "Changes in the law of copyright cannot affect the structure of incentives for works already created," the court wrote. "But the knowledge that Congress may pass laws like the URAA in the future does affect the returns from investing time and effort in producing works."

Plaintiffs also argued that a bright line rule against laws that remove works from the public domain would assure a sound balance between proper incentives for creative effort and anxiety about political establishment of unjustifiable monopolies. This is the public choice argument, the court noted.

The Eldred court also rejected this claim, the court wrote. "The principled and rigorous application of plaintiffs' public choice analysis would radically tilt the relations among the three branches of government. But the key flaw in the argument is that the Eldred plaintiffs were similarly arguing for a bright line rule (no extension of copyright terms for already completed works), in a context with a closely parallel lobbying imbalance, and Eldred rejected their claims."

Since plaintiffs were unable to offer a material distinction between this case and Eldred , the court noted, they tried relying on an historical distinction.

Plaintiffs urged the court that taking works out of the public domain is without precedent. The court did not find this argument persuasive, however.

As a result, the appellate court affirmed the District Court's dismissal of plaintiffs' claims.

Case: Luck's Music Library Inc. and Moviecraft Inc. v. Alberto R. Gonzales, Attorney General of the United States, and Marybeth Peters, Register of Copyrights
Court: U.S. Court of Appeals, District of Columbia Circuit; Circuit Judges Randolph and Roberts, Senior Circuit Judge Williams; case no. 04-5240
Counsel for Plaintiffs Luck's Music Library and Moviecraft: Daniel H. Bromberg argued the case, Geoffrey S. Stewart, Carmen M. Guerricagoitia and Jonathan L. Zittrain were with him on briefs
Counsel for the Government: John S. Koppel with the U.S. Department of Justice argued the case, Peter D. Keisler, assistant attorney general, Kenneth L. Wainstein, U.S. attorney, and William G. Kanter, deputy director were with him on the brief.