On January 18, 2012 the Supreme Court affirmed Congress’ authority to apply U.S. copyright protection to works which, although protected abroad, were previously considered to be within the public domain in the U.S. The 6-2 decision in Golan v. Holder holds that there is no constitutional limitation preventing copyright protection from being granted to a work that had been in the public domain as a result of having never been afforded copyright protection in the first place. The ruling is controversial because it means that an as yet indeterminate number of works that were previously free to use by the public have now become protected works; this has lead some parties to believe that Congress has undermined the purpose of the Constitution’s Copyright and Patent Clause and also infringed on First Amendments rights by taking away what was previously freely available.

The background of the case is lengthy, dating back to The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) which took effect in 1886 and which the U.S. joined over a century later in 1989. The Berne Convention lacked an effective copyright enforcement mechanism and many works that enjoyed copyright protection abroad were not provided the same protection in the U.S. This changed after the Uruguay round of multilateral trade negotiations, which led to the creation of the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In joining these agreements, the U.S. agreed to grant authors from other member countries the same protections it grants to its own. Because the U.S. had not previously recognized or enforced a large number of international copyrights, these agreements required it to “restore” protection to works that had formerly been denied protection and treated domestically as within the public domain. These new protections were applied when Congress enacted §514 of the Uruguay Round Agreements Act (URAA) providing in relevant part that:

Any work in which copyright is restored under this section shall subsist 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 in the United States.

In simple terms this means that if a work was protected in a member country but that protection was never recognized in the U.S., the work will now receive the protection that a U.S. work would have been granted. Additionally, U.S. works receive reciprocal protection in foreign countries.

There is no compensation for the period during which protection was unavailable, nor is the protection extended beyond what the work is entitled to in its country of origin. In recognition of the “public domain” challenge, §514 includes a one year transitional period as well as an additional year’s grace period for “reliance parties” currently using an impacted work. The grace period begins only after the owner of a restored copyright gives notice to enforce.

Opposition to the ruling argued that Congress lacks authority to enact the statute. In his dissent, Justice Breyer articulates the two issues he sees with the statute. First, he asserts that the Copyright Clause does not “empower Congress to enact a statute that withdraws works from the public domain” in particular, “without providing any additional incentive for the production of new material.” Second, “the statute…‘abridges’ a preexisting freedom to speak” by taking away access to forms of expressions that the public “reasonably believed [were], or would be freely available.”

I think the majority’s ruling in Golan was correct and disagree with the petitioners as well as Justice Breyer. Without going into the details of the Court’s extensive reasoning, I’ll comment briefly on my position regarding the two points that Justice Breyer put forth. First, I do not agree that the statute fails to provide incentive for the creation of new works. Justice Breyer bases this position primarily on the fact that the statute “does not encourage anyone to produce a single new work [because it] bestows monetary rewards only on owners of old works.” This characterization overlooks the fact that copyright protection only applies to works after they are created. While it is true that many of the original copyright holders may no longer be alive and that many of the works are old, this is not the whole picture. The statute restores rights to those who should have had copyright protection; and only through to the end of that protection period. It is not exclusive to parties that are no longer creating or to old works. It is a restoration of protection to parties that have been deprived of fair protection. The statute does not discriminate between whom to restore rights to based on a showing of the ability or intention to create new works; that does not mean that it fails to meet the goal of encouraging new works. The Constitution grants Congress the power to promote science and the arts “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, §8, cl. 8. By my reading this is what has occurred. The restoration of rights that were denied does not seem to violate the language of the Constitution. The long term effect of this decision remains to be seen. It can certainly be argued however that providing these rights where they were previously denied creates an incentive for those who have had rights restored to continue to work, as well as for those developing future works to have increased faith that their works will be protected in the U.S.

Regarding the second point, I reject the principle that there is a fundamental First Amendment interest in maintaining access to works that should have had, but were denied copyright protection. If a work has long been available despite the fact that the owner had a legitimate claim to it, those that have used it in the meantime have obtained a free benefit–one for which they will not be charged or penalized in any way other than that the unearned benefit has ended and the rights restored to the proper owner. As Justice Ginsburg stated in the opinion, “Authors once deprived of protection are spared the continuing effects of that initial deprivation; §514 gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.” Section 514 does not deprive any party of any benefit they were legitimately entitled to.

Copyright protection is a contentious subject both domestically and internationally. The creation and export of intellectual property is a significant part of the U.S. economy. The laws surrounding it are confusing and going through a necessary developmental period as works become more broadly available through more means than ever before. Protecting copyrighted material is a critical U.S. interest, one that can best be achieved by granting other nations the same rights it expects to receive in return. Without reciprocity, there is no incentive for other countries to enforce U.S. copyright protection– protection which is sorely needed abroad. Congress was correct to pass the URAA and the Supreme Court was correct to uphold it. The loss of free access to works that errantly entered the public domain in the U.S. is unfortunate but the restoration of these rights is correct because it is fair and it creates the necessary climate for enforcing U.S. copyright protection abroad.

Share