Follow up post to SUPREME COURT WILL DECIDE CONSTITUTIONALITY OF REMOVING WORKS FROM THE PUBLIC DOMAIN

By Tom Zutic and John Nading

In a 6-2 decision today in Golan, et al. v. Holder, et al., the U.S. Supreme Court upheld U.S. Copyright protection for foreign works which had fallen into the public domain prior to the U.S. joining the Berne Convention for the Protection of Literary and Artistic Works in 1989See Slip Opinion.  Under the Berne Convention, signatories agree to treat authors from fellow signatory countries as they would treat their own.  

As part of U.S. compliance with the Berne Convention, Congress in 1994 under Section 514 of the Uruguay Round Agreements Act granted copyright protection to preexisting works of Berne member countries which were protected in their country of origin, but lacked protection in the U.S. for the following reasons: (1) the U.S. did not protect works from the country of origin at the time of publication, (2) the U.S. did not protect sound records fixed before 1972, or (3) the author had failed to comply with U.S. statutory formalities which formalities are no longer required.  Thus, works that had fallen into the public domain after a full term of copyright, whether in the U.S. or the country of origin, received no additional protection under Section 514.  Works restored to copyright protection under Section 514 subsist for the remainder of the term of copyright that the work would have been granted had the work never entered the public domain.

Petitioners challenged the validity of Section 514 on the grounds that a work which has entered the public domain must remain in the public domain and cannot be retroactively protected.  Petitioners included persons who previously enjoyed free access to works which Section 514 removed from the public domain, including orchestra conductors, musicians, and publishers. 

The Court affirmed the decision of the Tenth Circuit Court of Appeals and held Section 514 is valid and does not run afoul of either the Copyright Clause of the U.S. Constitution, nor the First Amendment.  Delivering the Opinion of the Court, Justice Ginsburg stated: “Congress determined that U.S. interests were best served by our full participation in the dominant system of international copyright protection.  Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U.S. authors abroad, and remedying unequal treatment of foreign authors.”

Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Sotomayor joined the Opinion, with Justices Breyer and Alito dissenting.