(US Citizen) The title of this post is a bit misleading and I'm having a hard time seeing why there's a problem or disagreement here.
The ruling was specifically focused on foreign works as they relate to the Berne Convention. This international treaty binds signatory nations to the copyright protections provided in countries where the original art was created. It would apply to both US copyright holders to protect their works abroad and foreign copyright holders where their works are used here.
The Wikipedia page on the Berne Convention has some really interesting facts on this treaty and you should read it before voicing opposition to the SCOTUS ruling or claiming "American Exceptionalism" is being run over by a truck. This is not a bad ruling and the 6-2 vote suggests 1 judge appointed by a liberal President agrees with the argument. Ne, if you get into the opinion (link below) you'll find that two conservative appointees dissented while the remaining justices agreed (sans Kagan who recused). The point is that this was hardly a "party line" or ideological divide.
Before the Berne Convention, national copyright laws usually only applied for works created within each country. Consequently, a work published in United Kingdom (UK) by a British national would be covered by copyright there, but could be copied and sold by anyone in France. Likewise, a work published in France by a French national could be copyrighted there, but could be copied and sold by anyone in the UK. Dutch publisher Albertus Willem Sijthoff, who rose to prominence in the trade of translated books, wrote to Queen Wilhelmina of the Netherlands in 1899 in opposition to the convention over concerns that its international restrictions would stifle the country's print industry.
The United States initially refused to become a party to the Convention, since that would have required major changes in its copyright law, particularly with regard to moral rights, removal of the general requirement for registration of copyright works and elimination of mandatory copyright notice. This led to the Universal Copyright Convention in 1952 to accommodate the wishes of the United States. But on March 1, 1989, the U.S. Berne Convention Implementation Act of 1988 was enacted, and the United States Senate ratified the treaty, making the U.S. a party to the Berne Convention, and making the Universal Copyright Convention nearly obsolete.
Editorial. I believe in American exceptionalism on a number of fronts including some trade issues. But, the notion that any individual or group of people from one country can merely disregard the copyrights of and profit from works created in another is ludicrous. I feel bad for the plantiffs -- the orchestra members who brought the suit. They have been treated unfair, not by the SCOTUS, but by a general failure of US enforcement of foreign copyright as provided by the treaty.
My main problem with the way that copyright law has been "harmonized" between different countries is that the "harmonization" is always done by increasing the copyright restrictions of the freer country, rather than by loosening the copyright restrictions of the less-free country. It's like a ratchet, always pushing for more and longer copyright restrictions.
> the "harmonization" is always done by increasing the copyright restrictions of the freer country
In addition, the freer country harmonise increasing its protection to the less free countries' protection + some additional protection, so that another round of harmonisation is now required by the other countries. And so on…
I'm a bit puzzled by the reasoning, though. "The top court, with Justice Elena Kagan recused, said Congress’ move to re-copyright the works to comport with an international treaty was more important."
OK so they made their decision on the basis of there being a treaty... Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour? How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress. This seems like a bit of circular reasoning.
Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour?
That ought to do the job; Article VI of the Constitution plainly states that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
In other words, if there is a treaty obligation, that trumps all other considerations.
How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress.
Article II, Section 2 of the Constitution spells this out:
"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..."
Because the constitution is setting up the rules for what can completely superceed it. Basically: Congress and the President must follow these rules when governing the country, except when they agree not to, as declared in these same rules.
I get the need for treaties and and federal laws to superceed local laws, but that laws have to be made pursuant to the Constitution while treaties only have to be made under the authority of the United States, defined as the President and 2/3 of the Senate, is odd. Seems as though they could legally eliminate all constitutional obligations through treaty, or even enter into a treaty to use a different constitution.
This is not really circular at all, merely self-referential; the Constitution also provides a process for it to be amended, so any and all of it's provisions could be repealed or rewritten without having to get a foreign government involved in the equation at all.
Of course, all of the parties involved (President, Senators, etc.) have sworn an oath to uphold the Constitution.
I understand the creepy feeling, though. And I'm pretty sure that through treaty, they've dramatically lowered the bar for entering into a treaty to simple Presidential whim. According to Wikipedia, "executive agreements" outnumber actual treaties by 10:1.
The US constitution's "supremacy clause" says that:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land
so treaties seem to have quasi-Constitutional authority, in that they are, like the Constitution, the "supreme law of the land". But the text doesn't clearly specify how to resolve conflicts between treaties and the Constitution itself. It's a bit of an open question since the U.S. has tended not to enter into treaties that present it square-on, but the Supreme Court seems willing to enforce some restrictions on what exactly a treaty can do. If there's a direct conflict, the Constitution supersedes treaties under http://en.wikipedia.org/wiki/Reid_v._Covert, but in more gray-area cases the courts seem to give more leeway to treaties than normal laws, due to some vague mixture of the supremacy clause and general principles of deference to / non-interference with the "political branches" on foreign policy.
> Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour?
You're mis-interpreting things: as michael_dorfman notes, according to the constitution of the united states of america any international treaty signed by the United States's administration is the binding law of the land.
> How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress.
The executive (the president) ratifies it and the Senate contents to it (with a two-thirds vote)
The Constitution itself creates an exception to the 1st amendment through the Copyright Clause. When two clauses of the Constitution are in tension, the Court usually applies a balancing test. Here, the existence of the international treaty weighs in favor of upholding the law.
Berne convention only constrains a life+50 copyright. For example, in Canada (signee of the Berne convention), Prokofiev (dead 1953)'s works are in the public domain.
So why would Berne convention force USA to remove "Peter and the Wolf" from public domain?
I'm no expert and I could be reading it wrong, but from what I understand the treaty allows for the "rule of the shorter term" though wikipedia states that not every country has "accepted this rule."
Justice Breyer can’t by any reasonable measure be described as a “conservative” Justice relative to the current Court, and “conservative appointee” is a pretty useless (or in this case grossly misleading) label.
Whoops. I didn't realize I had made that mistake. And instead of "conservative appointee" I intended to reference the appointing President. Though, it does strengthen the argument for the mixture of majority and dissenting opinions. Thanks for the correction.
The ruling was specifically focused on foreign works as they relate to the Berne Convention. This international treaty binds signatory nations to the copyright protections provided in countries where the original art was created. It would apply to both US copyright holders to protect their works abroad and foreign copyright holders where their works are used here.
The Wikipedia page on the Berne Convention has some really interesting facts on this treaty and you should read it before voicing opposition to the SCOTUS ruling or claiming "American Exceptionalism" is being run over by a truck. This is not a bad ruling and the 6-2 vote suggests 1 judge appointed by a liberal President agrees with the argument. Ne, if you get into the opinion (link below) you'll find that two conservative appointees dissented while the remaining justices agreed (sans Kagan who recused). The point is that this was hardly a "party line" or ideological divide.
The official opinion here: http://www.supremecourt.gov/opinions/11pdf/10-545.pdf
Some worthy quotations from the Wikipedia page found at: http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protec...
Before the Berne Convention, national copyright laws usually only applied for works created within each country. Consequently, a work published in United Kingdom (UK) by a British national would be covered by copyright there, but could be copied and sold by anyone in France. Likewise, a work published in France by a French national could be copyrighted there, but could be copied and sold by anyone in the UK. Dutch publisher Albertus Willem Sijthoff, who rose to prominence in the trade of translated books, wrote to Queen Wilhelmina of the Netherlands in 1899 in opposition to the convention over concerns that its international restrictions would stifle the country's print industry.
The United States initially refused to become a party to the Convention, since that would have required major changes in its copyright law, particularly with regard to moral rights, removal of the general requirement for registration of copyright works and elimination of mandatory copyright notice. This led to the Universal Copyright Convention in 1952 to accommodate the wishes of the United States. But on March 1, 1989, the U.S. Berne Convention Implementation Act of 1988 was enacted, and the United States Senate ratified the treaty, making the U.S. a party to the Berne Convention, and making the Universal Copyright Convention nearly obsolete.
Editorial. I believe in American exceptionalism on a number of fronts including some trade issues. But, the notion that any individual or group of people from one country can merely disregard the copyrights of and profit from works created in another is ludicrous. I feel bad for the plantiffs -- the orchestra members who brought the suit. They have been treated unfair, not by the SCOTUS, but by a general failure of US enforcement of foreign copyright as provided by the treaty.
Just my $0.02