Extension of copyright term and restoration of copyright is as controversial a subject as anything in the realm of copyright law. Over the years these issues have surfaced periodically to the detriment of the public domain. In 1991 Vishwa Bharati the University which held the copyright to Rabindranath Tagore's works which was due to expire on January 1, 1992, were successful in getting an Ordinance Bill passed by the Indian Government to extend the copyright protection term from 50 years to 60 years - to protect the purity of the poet's works which otherwise would be distorted and vulgarised due to crass commercialization. In 2001 Vishwa Bharati again sought a further extension but was denied the same and Tagore's works entered the public domain on January 1, 2002. In contrast in 2009, the Navjivan Trust holder of the copyright to Gandhiji's works refrained from seeking a further extension of the copyright term. Copyright term extension is one thing and there has been a trend in many countries in recent years to extend copyright protection to 70 years. Though there have been precedents, restoration of copyright to works already in the public domain is however quite another matter and one which could have far reaching consequences. For example Tagore, Gandhi or others like Munshi Premchand, Subramania Bharati, Bankim Chandra Chatterjee whose works are in the public domain could once again come under copyright protection leading to considerable confusion.

This is precisely the question raised in a major case, Golan vs Holder currently being argued in the US Supreme Court - Does the US Congress have the Constitutional right to restore copyright to works already in the public domain? It could have a bearing on future changes in copyright law enacted in other countries including India which has a copyright amendment bill pending approval in parliament. In 1994 the US Congress passed a law to protect works of foreign authors hitherto unprotected in the US. The Act restored copyright protection to works by many composers, writers and painters like Prokofiev, Shostakovich, Picasso, Stravinsky, Alfred Hitchcock, C S Lewis and others. However, it involved only works that were already in the public domain in America, due to reasons of failure to renew copyrights, or failure to serve notice or because their countries of origin did not have bilateral copyright relations with the US at the time, etc. and these works would now have protection restored to them so long as they had not passed into the public domain in the country where they originated.

The US became a signatory to the Berne Convention Treaty of 1971 which accorded minimum levels of reciprocal protection to copyrighted works of member countries only in 1988. Even then it ignored implementation of Article 18(1) which required reciprocal protection, due to which many foreign works fell into the public domain in the intervening period, for reasons as mentioned in the previous para. In 1994 the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) was constituted during the Uruguay Round of GATT and administered under the newly established World Trade Organization (WTO), which also made provisions for dispute redressal and to enforce compliance. The 1994 US law thus become necessary in order to harmonize US Copyright Laws with the Uruguay Round Agreement Act (URAA). Conformity with these international treaties, which required that a work copyrighted in one country should reciprocally get the same protection in other countries, was also seen to be in line with US economic interests considering the huge US Intellectual Property at stake globally. It secured protection for US Copyrighted works in all countries signatory to the treaty.

In an earlier case Eldred vs Ashcroft the Supreme Court had heard arguments on whether Congress had the power to extend the copyright term by 20 years to works whose term had not expired and therefore had not entered into the public domain. The plaint was rejected by the Court on that occasion and upheld the right of the Congress to extend the copyright term. This issue of Copyright term extension has been justified on several grounds including bringing Copyright Law in line with global practices; to protect authors so that they have an incentive to continue to create new works; to ensure that authors (or their heirs) benefit from their works in their lifetime (or post their lifetime), also as often many works get recognition when the authors are way past their prime; and to encourage investment in existing copyrighted works to create new work that builds on the original work.

What the cases had in common was that they both challenged the constitutional authority of the Congress. While in Eldred the issue was validity of extending the copyright term, before the Court in Golan is a more fundamental issue - restoring copyright to work already in the public domain. Conventionally once copyright protection expires and a work enters into the public domain, protection cannot be restored. This is one of the basic premises on which Copyright law is built. On the other hand it is not the first time that copyright has been restored to a work in the public domain but there should be compelling reasons or circumstances which justify such an action. So is complying with international treaties enough justification? We will have to wait till the Supreme Court gives its verdict to know the answer.

There are those who strongly oppose anything that undermines or tampers or restricts the growth of the public domain, the common pool of knowledge and ideas handed down through history - our cultural and scientific heritage. Governments too recognize the need for a robust public domain to enable the free exchange of ideas essential for the cultural, scientific and economic advancement of society. After all it could be contended that every work is a progression of existing knowledge and ideas and its eligibility for protection itself is questionable. So conferring protection for extended periods of time to any work in no way furthers the advancement of society.

The concept of the public domain is not new and can actually be dated back to ancient Roman law which pronounced that there are certain things that cannot be owned like air or sunlight or the seas which everyone was free to enjoy. But the first copyright law, the Statute of Anne did not conceive of a public domain and it was only later that law makers in France and Britain developed the idea of a commons and the terms publici juris or propriété publique came to be used to describe works that were not covered by copyright law. The phrase "fall in the public domain" can also be traced to mid-nineteenth century France to describe the end of copyright term.

Technically all works and information whose copyright term has expired, fall into the public domain and is said to be public property, which anyone may use in whatever way they wish, without having to worry about taking permission from copyright owners. Public domain works are no longer owned by anybody. The public domain is of immeasurable value to scholars, researchers, archivists and others to build on existing works by creating new and improved works. A better way to understand its significance is maybe to just visualize a world where the public domain did not exist - no works, no ideas, no information, no nothing, from our entire past history.

So what is required seems to be a balance between the interests of authors and creators on the one hand and the progress of society and learning on the other. Both need the incentive to create and progress and one should not be treated exclusive of the other. It is up to governments and law makers to bear in mind the principle of greater good when enacting laws, in order to strike an equitable balance between the two opposing interests.

~ C P Joseph & Stanley Paul