Tenth Circuit victory for copyright owners - Golan v. Holder, Case: 09-1234 – FREE DOWNLOAD

Tenth Circuit victory for copyright owners - Golan v. Holder, Case: 09-1234 – FREE DOWNLOAD


A major victory for copyright owners was rendered today by the Tenth Circuit U.S. Court of Appeals in Golan v. Holder, in which Reed Elsevier participated in a friend-of-court brief supporting the US Government.

The case involved the constitutionality of Section 514 of the Uruguay Round Agreements Act ("URAA") (codified as amended at 17 U.S.C. §§ 104A, 109) a federal statute restoring copyright to works of other treaty partners that were still in copyright in their countries of origin but had fallen into the public domain in the United States. The plaintiffs challenged the constitutionality of the law as a restriction on free speech, asserting that the law should be subjected to a "strict standard" or review, that compliance with the Berne Convention was an insufficiently important public purpose to justify the restraints on their use of the foreign works at issue, and, most importantly, that the public domain was a form of Constitutional sanctuary from which works could not be removed once they had entered it.

Originally the District Court rejected the Constitutional challenge, but on appeal the Tenth Circuit reversed and remanded to the District Court to consider the free speech (First Amendment) issue. The District Court then dutifully ruled the statute unconstitutional as violative of the First Amendment. This time, the Tenth Circuit reversed the second ruling and upheld the statute.

For US copyright owners, the most significant points of the decision are:

  • Compliance with the Berne Convention is a "substantial" government interest.
  • In balancing the free speech equities, "Copyright also serves authors' First Amendment interests." The free speech argument is not a one-way street.
  • The "inviolable" public domain argument  was squarely rejected: "[P]laintiffs have provided no legal support for their claim that the First Amendment-either by itself or informed by any other provision of the Constitution-draws such absolute, bright lines around the public domain, and we are aware of no such authority."

The Tenth Circuit did not confront the Supreme Court's language in Eldred v. Ashcroft that copyright law does not conflict with the First Amendment so long as the  "traditional contours of copyright," are preserved, language with the some academics have interpreted as prohibiting an material change from the structure of copyright in the 1790's including, for example, the elimination of formalities under the Berne Convention, but finessed the issue as follows: "We note that copyright includes several "built-in" First Amendment protections. Eldred, 537 U.S. at 219-20. The idea/expression dichotomy ensures that only particular expressions, and not ideas themselves, are subject to copyright protection. Id. Additionally, the fair use defense allows individuals to use expressions contained in a copyrighted work under certain circumstances, including "criticism, comment, news reporting, teaching . . . scholarship, or research . . . and even for parody." Id. (quotations and citation omitted). Section 514 does not disturb these, traditional, built-in protections[empahis supplied], and thus, such protected speech remains unburdened."

Please click on the link at the top of the post to view or download the entire opinion from Golan v. Holder, Case: 09-1234 (10th Cir.)

Attachment: Golan v. Holder, Case 09-1234 (10th Cir.).pdf