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 lexis.com subscribers / unenhanced version available from lexisONE Free Case Law].
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
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
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