Last term in Golan v. Holder, the U.S. Supreme Court upheld the constitutionality of section 514 of the Uruguay Round Agreements Act, which extended copyright protection to millions of foreign works of art, literature, and music previously in the public domain. This decision will likely have a deleterious impact on America’s faltering symphony orchestras.
By removing important staples of the symphonic repertoire—including works by Prokofiev, Rachmaninoff, Shostakovich, and Stravinsky—from the public domain, Golan dramatically increases the cost of performing these works. This is because copyright- protected music is more expensive for orchestras to perform for two reasons: The orchestral parts are generally available on a rental-only basis, which is dramatically more expensive than buying the parts, and orchestras must pay public performance license fees to perform such works. Moreover, section 514 has been implemented very inefficiently, making it both challenging and costly for orchestras to determine which works have been restored to copyright and to whom those rights belong. By making it both more difficult and more expensive to perform these works, Golan decreases the ability of U.S. orchestras—which are already facing serious financial difficulties—to perform these works.
This Comment argues that decreased dissemination of works restored to copyright under section 514 undermines American copyright law’s purpose of “promot[ing] the Progress of Science and useful Arts.” It further suggests that decreased performance of these works harms society as a whole because decreased dissemination of section 514 works robs society of cultural enrichment and societal benefits associated with involvement with the arts.60-4-3