Supreme Court Grants Certiorari in Case Challenging the Removal of Works from the Public Domain
Public domain watchdogs and advocates received some heartening news on March 7th regarding a law that violates one of the most longstanding taboos of copyright law. The Supreme Court has granted certiorari in the case of Golan v. Holder, which challenges Congress’ power to restore copyright protection to works already within the public domain. The Court has agreed to examine two questions. First, does Congress have the authority to restore copyright protection to a work once that protection has lawfully expired? Second, does the Uruguay Round Agreements Act (URAA) violate the First Amendment by restricting public access to and distribution of the affected works?
The law, Section 514 of the URAA (incorporated into Section 104A of the Copyright Act), restored copyright in foreign works that had entered the public domain due to noncompliance with requirements including renewal and copyright notice, the lack of protection prior to Feb. 15, 1972 for sound recordings, or lack of national eligibility. Eligible works must not have entered the public domain in the source country, and the restored term of protection was “for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain…” Essentially, this was a restoration of the remaining term of protection for works still protected in their home countries that had lost protection in the U.S. due to legal technicalities.
Now, it’s worth keeping in mind that the URAA is not new at all. The URAA is the implementation of the provisions agreed on at the Uruguay Round of negotiations under the GATT, including TRIPS, and came into effect back in 1995. The U.S. was under a lot of pressure at the time to fix what was seen as a critical flaw in the Berne Convention Implementation Act of 1988, namely that law’s failure to recognize the retroactivity of Article 18(1) of the Berne Convention. With the Berne Convention incorporated into TRIPS, the U.S. finally caved to the international criticism.
That, needless to say, did not sit well with the many people in the U.S. who had been happily using the affected works. Although Section 514 does contain provisions easing the transition for those who qualified as reliance parties, the end result was still that many people would face the choice of ceasing their use of the works or risking litigation. Enter Lawrence Golan, who alleged in his initial suit that the URAA (as well as the CTEA) was unconstitutional and a restriction of free speech. Eldred v. Ashcroft eliminated the question of whether the CTEA was unconstitutional, but the 10th Circuit issued two opinions the claims against the URAA in Golan v. Gonzalez and in the case’s present form.
SCOTUSblog called the case “a major test of copyright power,” and quotes the petition’s claim that the possibility of restoration of copyright protection means that “the public’s federal right to copy and use public domain material … may evaporate at any time.” With language like that being tossed around, I think that it’s appropriate to remember that the actual scope and purpose of Section 514 is foreign works still under protection in their country of origin in order to comply with our international treaty obligations. With that in mind, and considering the fact that there is no circuit split on this issue, this is an interesting pick by the Supreme Court. Perhaps the Court intends to follow up it’s decision in Eldred by saying that although Congress has the power to extend the term of protection for works not in the public domain, it has no such power to reestablish that protection once gone? Perhaps the Court will rule that Congress has the power to do anything it pleases with copyright protection as long as such terms are of limited duration? Whatever the case, this will be extremely interesting to watch.