Golan v. Holder, U.S. 2012
Procedural History: In 2001, petitioners filed this lawsuit challenging § 514. The District Court granted the Attorney General’s motion for summary judgment. The Court of Appeals for the Tenth Circuit affirmed in part, but required further First Amendment inspection. On remand, summary judgment was given to the petitioners. The Tenth Circuit reversed holding that § 514 survived First Amendment scrutiny because the law was narrowly tailored to fit the aim of protecting U.S. copyright holders’ interests abroad. SCOTUS granted certiorari to consider petitioners’ challenge to § 514 under the Copyright Clause and the First Amendment and now affirm.
Facts: The Berne Convention took effect in 1886, and the U.S. joined in 1989. Congress adopted a “minimalist approach” to compliance with the Convention. In 1994, Congress passed the Uruguay Round Agreements Act (URAA) in § 514, which gave works enjoying copyright protection abroad the same full term of protection available to U.S. works. Until 1891, foreign works were excluded from U.S. Copyright Act protection. And for many years, for both domestic and foreign authors, protection hinged on compliance with notice, registration, and renewal formalities.
Issue: Whether or not Congress has the authority to provide copyright protection for a work previously in the public domain. Should would-be users have to pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work?
Rules: The Constitution states that “Congress shall have Power to promote the Progress of Science by securing for limited Times to Authors the exclusive Right to their Writings.”
The URAA grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the U.S.. It accords no protection to a foreign work after its full copyright term has expired, whether under the laws of the country of origin or of the U.S..
17 U.S.C. § 102(b) states that copyright does not protect ideas and that every idea, theory, and fact in copyrighted works become instantly available for public exploitation at the moment of publication.
17 U.S.C. § 107 states that fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright.
Application: Because the works encompassed by § 514 are granted the protection they would have enjoyed had the U.S. maintained copyright relations with the author’s country or removed formalities incompatible with Berne, foreign authors enjoy fewer total years of exclusivity than do U.S. counterparts because they are not given any credit for the protection they lacked in years prior to the URAA’s enactment.
Petitions assert that a work that has entered the public domain must remain there. However, Congress indicated that it had not definitively rejected “retroactive” protection for preexisting works after its entrance into the Berne Convention.
After the United States joined the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the U.S. could be subjected to tariffs or cross-sector retaliation if it did not fully comply with Berne’s first 21 articles.
The URAA imposed no liability for any use of foreign works occurring before restoration of its copyright and anyone remained free to copy and use restored works for one year following the URAA’s enactment. It also allowed reliance parties to continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce, and even then the reliance party could continue to exploit the existing copies for a grace period of a year. Anyone who created a “derivative work” could indefinitely exploit the work upon payment to the copyright holder of “reasonable compensation.”
Although the petitioners contend that removing works from the public domain violates the limited times restriction, SCOTUS holds that historical practice corroborates a reading of the Copyright Clause to permit full U.S. compliance with Berne.
SCOTUS further holds that each copyright provision, examined discretely, need not operate to induce new works, but can instead encourage dissemination of existing and future works as an appropriate means to promote science. Congress determined that adherence to Berne would serve the objectives of the Copyright Clause.
Furthermore, once the term of protection ends, the works do not revest in any rightholder, and so the U.S. is not depriving any property holder of rights even if he is a “reliance party.”
Conclusion: SCOTUS holds that neither the Copyright and Patent Clause nor the First Amendment makes the public domain a territory that works may never exit.