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Supreme Court Upholds Law Restoring Copyright to Some Public-Domain Works
- 2/1/2012

On January 18, 2012, the Supreme Court upheld the constitutionality of the application of Section 514 of the Uruguay Round Agreements Act in Golan v. Holder.  The law in question had the effect of taking some foreign-made works, first published abroad between 1923 and 1989, out of the public domain in the United States to comply with the Berne Convention.  The suit, which was originally filed in 2001, was brought by a University of Denver music professor and a group of orchestra conductors, film archivists, and many others, claiming that Congress had exceeded its authority under the Copyright Clause of the Constitution.  Petitioners claimed that application of the Act violated the the "limited time" language of the Copyright Clause, and that restoring copyright in works that had passed into the public domain interferes with their First Amendment right to use, copy, and otherwise exploit the words.

By a 6-2 majority, the Supreme Court's decision was written my Justice Ruth Bader Ginsburg.  The majority rejected Petitioners' arguments based on the Copyright Clause and the First Amendment.  According to the decision, "Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit."   The majority decision pointed out that the Act was passed for the United States to meet its requirements under the Berne Convention stating that “Congress ensured that most works, whether foreign or domestic, would be governed by the same legal regime.”  As an example,  Justice Ginsburg stated “Prokofiev’s ‘Peter and the Wolf’ could once be performed free of charge.” While now, she said: “The right to perform it must be obtained in the marketplace. This is the same marketplace, of course, that exists for the music of Prokofiev’s U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers.”

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