What is public? The case for a "rich common"


Lewis Hyde

Alongside the UK publication of his provocative book, Common as Air, Lewis Hyde takes a look at Golan v Holder, a copyright case recently decided by the US Supreme Court.

On January 18 of this year the US Supreme Court decided a copyright case, Golan v Holder, in which the key question was whether Congress is ever allowed to ‘restore’ copyrights for works that, for one reason or another, have fallen into the public domain.

The court decided that yes indeed, Congress may do so. Nothing in the US Constitution, neither the Copyright Clause nor the First Amendment, they ruled, “makes the public domain, in any and all cases, a territory that works may never exit”.

In October 2011, just before this case was argued, I sought to frame the historical rationale by which the opposite opinion might be argued. I here reproduce a version of that argument and follow it with a comment on the court’s contrary ruling.

Copyright, public domain, Supreme Court