January 18, 2012

Supreme Court Decides Golan v. Holder

On January 18, 2012, the Supreme Court decided Golan v. Holder, No. 10-545, holding that § 514 of the Uruguay Round Agreements Act ("URAA") - which restored copyright protection to foreign works in the public domain - neither exceeded Congress's authority under the Copyright Clause nor violated the First Amendment.

Article 18 of the Berne Convention for the Protection of Literary and Artistic Works ("Berne") requires countries to protect the works of other member states unless the work's copyright term has expired in either the country where protection is claimed or the country of origin. When the United States joined Berne, it nevertheless did not protect any foreign works lodged in the U.S. public domain. In 1994, however, a subsequent international agreement mandated adherence to Berne's first twenty-one articles. In response, Congress passed the URAA and applied the term of protection available to U.S. works to pre-existing works from Berne member countries. As a result, certain works that were previously in the public domain had their copyright "restored."

A group of orchestra conductors, musicians, publishers, and others who had formerly enjoyed free access to certain foreign works that § 514 of the URAA removed from the public domain brought suit on grounds that, in passing § 514, Congress exceeded its authority under the Copyright Clause and violated the First Amendment.

The district court granted the government's motion for summary judgment. The Tenth Circuit affirmed in part but concluded that § 514 required further First Amendment inspection. On remand, the district court granted summary judgment to plaintiffs on the First Amendment claim. The Tenth Circuit reversed, and the Supreme Court affirmed the circuit court's decision, relying heavily on Eldred v. Ashcroft, 537 U.S. 186 (2003).

The Court first held that § 514 did not exceed Congress's authority under the Copyright Clause. Plaintiffs argued that the Clause's confinement of a copyright's lifespan to a "limited Tim[e]" precluded the removal of works from the public domain. The Court, however, held that the Clause contains no "command that a time prescription, once set, becomes forever ‘fixed' or ‘inalterable'" and that the terms afforded works restored by § 514 were "limited." The Court also rejected the plaintiffs' argument that because § 514 only affects works already created it fails to meet the objective of promoting "the Progress of Science," as contemplated by the Clause.

The Court then held that the First Amendment did not inhibit restoration of the copyright in public domain works, again referencing Eldred and holding that nothing in the historical record, subsequent congressional practice, or the Court's jurisprudence warranted exceptional First Amendment solicitude for copyrighted works once in the public domain. The Court noted that copyright law by its nature restricts speech but that the idea/expression dichotomy and fair use defense serve as "built-in First Amendment accommodations." Moreover, it found that Congress had adopted measures to ease the transition for parties who had exploited affected works.

Justice Ginsburg delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Sotomayor joined. Justice Breyer filed a dissenting opinion, in which Justice Alito joined. Justice Kagan took no part in the consideration or decision of the case.

Download Opinion of the Court

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