A generation gap arises for justices in copyright case

WASHINGTON - Justice Ruth Bader Ginsburg invoked Aaron Copland. The chief justice countered with Jimi Hendrix.

That generational divide at the high court was on display Wednesday as the justices heard arguments about whether Congress acted properly in extending U.S. copyright protection to millions of works by foreign artists and authors that had been in the public domain - meaning they could be performed and used in other ways without paying royalties.

The case before the court involves a 1994 law that made copyrights available to foreign works. Community orchestras, academics, and others who rely on uncopyrighted works are challenging the law - and Google, with its YouTube and digital art and library projects that depend on works in the public domain, is backing them.

Composers, authors, songwriters, photographers, and others who depend on copyright protection are urging the court to uphold the law.

Copland and Hendrix were Americans, but justices on Wednesday used them to illustrate differing views.

For Ginsburg, 78, the case appeared easy.

She talked about two Russian-born composers, Dmitri Shostakovich and Igor Stravinsky, whose works were never copyrighted in the United States.

A copyright allows artists, or the copyright-holder such as a deceased artist's estate, a fixed period in which they can permit or deny others the right to use or reproduce their work or demand a royalty payment for doing so.

"What's wrong with giving them the same time Aaron Copland got?" Ginsburg asked the lawyer representing the law's challengers.

Chief Justice John G. Roberts Jr. was 14 when Hendrix performed his "distinctive rendition" of "The Star-Spangled Banner" at the Woodstock music festival. Roberts, now 56, voiced concern that Hendrix's freedom of expression could have been compromised under the government's argument.

"Assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?" Roberts said.

The court ruled in 2003 that Congress may extend the life of a copyright, but it has never said whether published works lacking a copyright could later be protected.

Justice Stephen G. Breyer emerged as a skeptic of the law, pointing to what he said was a "treasure trove" of foreign-produced literature and music that groups are working to post on the Internet.

The 1994 law was intended to bring the United States in line with an international agreement.