Supreme Court Upheld Constitutionality of Copyright Restoration: Golan v. Holder

In Golan v. Holder [enhanced version available to lexis.com subscribers], the Supreme Court upheld the constitutionality of 17 U.S.C. § 104A, which restores the copyright in certain foreign works that have entered the public domain in the US. The Court avoided a possible conflict with international law but also rejected a principle held dear by many proponents of free expression. The Court's strong deference to Congress opens the door to future incursions into the public domain. In this Analysis, Mary LaFrance discusses the case and its history and provides her observations post-Golan. She writes:

The Supreme Court's Analysis

     By a vote of 6-2 (with Justice Kagan recused), the Court upheld the constitutionality of section 514 [of the Uruguay Round Agreements Act of 1994, codified at 17 U.S.C. § 104A].

     On the question whether section 514 violates the "limited times" restriction of the Progress Clause, the Court relied on its analysis in Eldred [v. Ashcroft, 537 U.S. 186 [enhanced version available to lexis.com subscribers]], where it had upheld the Sonny Bono Copyright Term Extension Act (CTEA) of 1998, which added 20 years to the terms of all subsisting copyrights. The Golan Court rejected the hypothetical concern that Congress could, by repeatedly adding years to the copyright term, achieve the equivalent of perpetual copyright protection. If the copyright term extension approved in Eldred did not exceed Congress's constitutional authority, the Court reasoned, then applying the same copyright term to foreign works should be equally constitutional. Acknowledging that section 514 differed from the term extension in Eldred, because the works at issue in the latter case had not yet entered the public domain, the Court found this difference non-dispositive, noting that the Copyright Act of 1790, drafted on the heels of the Constitution, had itself granted copyright protection to some pre-existing works that were not yet covered by copyright. In the nineteenth and early twentieth centuries, Congress on several occasions granted (or permitted the President to grant by proclamation) copyright and patent protection to works that had already entered the public domain.

     The Court also held that section 514 does not fail to "promote the progress of science" as required by the Progress Clause. The Court reiterated its conclusion in Eldred that copyright statutes can satisfy this clause even if they do not incentivize the creation of new works. It noted that compliance with international copyright agreements can also promote the goals of the Progress Clause, by expanding foreign markets for works by United States authors and strengthening their protection against foreign piracy.

     With respect to the First Amendment question, the Court's prior decision in Eldred had rejected the proposition that copyright law is categorically immune from First Amendment scrutiny. However, Eldred went on to hold that Congress did not violate the First Amendment in 1998 when it added 20 years to the terms of all subsisting copyrights. Even though this copyright extension had the effect of restricting speech, Eldred held that sufficient protections for free expression remained, because: (1) the idea/expression dichotomy (17 U.S.C. § 102(b)) and the fair use doctrine (17 U.S.C. § 107) provided built-in safeguards protecting First Amendment interests; (2) First Amendment considerations "bear[] less heavily when speakers assert the right to make other people's speeches,"; and (3) the CTEA provided certain supplemental protections for free speech.

(citations omitted)

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