Congress May Restore Copyright Protection to Public Domain Foreign Works Despite First Amendment Concerns

Excerpt:

Once a book, song or artwork falls into the public domain, it becomes forever available for use by members of the public, who need not worry about the author's intellectual property rights. Such is the bargain between artists and the public that is enshrined in the U.S. constitution and in the laws of innumerable other countries. Or so we all thought. This is a story about works that fell into the public domain but, due to a global treaty, suddenly regained copyright protection. Not everyone was pleased.

On June 21, 2010, the U.S. Court of Appeals for the Tenth Circuit upheld the constitutionality of Section 514 of the Uruguay Round Agreements Act (URAA). That provision restores copyrights for certain foreign works, including those that had entered the public domain because of failure to adhere to formalities that have since been repealed. The opinion in Golan v. Holder, 2010 U.S. App. LEXIS 12641 (10th Cir. Colo. June 21, 2010) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] overturned a district court decision about which we reported earlier.

The URAA had restored copyright protection for thousands of works, including Virginia Wolf's "A Room of One's Own", J.R.R. Tolkien's collected works, hundreds of Picasso paintings, and numerous compositions of Serge Prokofiev. They had lost (or never obtained) copyright protection in the United States because they failed to bear a copyright notice upon their publication, or the artists failed to register their works with the U.S. copyright office, or both.

The musician Lawrence Golan and other artists and businesses filed their complaint in 2001, challenging the constitutionality of both the Sonny Bono Copyright Term Extension Act and the URAA. Golan invoked the copyright clause of the Constitution, which calls for copyright protection "for limited times." In deciding Eldred v. Ashcroft , 537 U.S. 186, 123 S. Ct. 769, 154 L. Ed. 2d 683 (2003) [enhanced version / unenhanced version], in 2003, the United States Supreme Court dismissed that argument as to the Sonny Bono Copyright Term Extension Act.

Ever optimistic, the plaintiffs in Golan drew hope from this final sentence of Eldred v. Aschroft: "When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." [footnote omitted]

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