Copyright Restoration: The Supreme Court's Upcoming Decision in Golan v. Holder

Copyright Restoration: The Supreme Court's Upcoming Decision in Golan v. Holder

The Supreme Court is being asked to determine whether Congress violated the Constitution when it restored copyrights in certain foreign works that had entered the public domain in the US. If the Court holds that it was unconstitutional, the copyright owners will be stripped of their exclusive rights. In all likelihood, this will cause the United States to be in breach of its treaty obligations under the World Trade Organization (WTO) Agreement. In this Analysis, Mary LaFrance discusses the constitutionality of copyright restoration and the Supreme Court's upcoming decision in Golan v. Holder, 609 F.3d 1076 (10th Cir. Colo. 2010) [enhanced version available to subscribers / unenhanced version available from lexisONE Free Case Law]. She writes:

     When the United States joined the Berne Convention in 1989, it became obligated to grant federal copyright protection on a non-discriminatory basis to works from Berne Convention countries without imposing any formalities as prerequisites. This meant that the United States should, at that time, have reinstated many of the forfeited copyrights in foreign works. However, the United States did not take this step until 1994, when most of the Berne Convention was incorporated into the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement, as part of the WTO Agreement, in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT).

     In order to comply with TRIPS, Congress enacted section 514 of the Uruguay Round Agreements Act of 1994 (URAA), codified at 17 U.S.C. § 104A, which restored copyrights in original works of authorship from WTO or Berne countries if they satisfied several conditions ....


     The Supreme Court granted a petition for certiorari in Golan v. Holder, 2011 U.S. LEXIS 1972 (Mar. 7, 2011) [enhanced version / unenhanced version] to consider the following questions:

1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?

2. Does Section 514 violate the First Amendment of the United States Constitution?

     With respect to the First Amendment question, in its earlier decision in Eldred v. Ashcroft, 537 U.S. 186 (2003) [enhanced version / unenhanced version], the Supreme Court rejected the proposition that copyright law is categorically immune from First Amendment scrutiny.

(citations omitted)

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