A law providing that millions of works created by foreign authors that had been in the public domain qualify for U.S. copyright protection was upheld on Saturday, January 18, 2012, when the Supreme Court decided Golan v. Holder (No.10-545). The case involved the constitutionality of § 514 of the Uruguay Round Agreements Act (now codified in the U.S. Copyright Act as 17 U.S.C. § 104A), which was passed in 1994. Section 514 gives copyright protection in the U.S. to a foreign author who is a citizen of any of the member countries of the Berne Convention for the Protection of Literary and Artistic Works. The effect of § 514 is that it restores the works of authors that are protected by the copyright laws of their own country but have been in the public domain in the U.S. because: (1) the work was published at a time when the U.S. was not protecting works from the author’s country or (2) the author did not comply with a copyright formality required in the U.S. Restored works will return to the public domain eventually—they are given copyright protection for the length of time that the work would have had protection had it not been placed in the public domain. Works done by Picasso, Virginia Woolf, Alfred Hitchcock, C.S. Lewis, and Prokofiev are examples of works which have been restored from the public domain due to the effect of § 514.
The petitioners in Golan were orchestra members and others who alleged that § 514 violated Article I, Section 8, clause 8 of the U.S. Constitution (also known as the Copyright Clause) by providing works which had previously been in the public domain with copyright protection. The Copyright Clause states that Congress has the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Speaking about § 514, the named petitioner in Golan, Lawrence Golan, reported to QuestionCopyright.Org that while Golan will not affect larger orchestras with budgets that enable them to purchase pieces, “it currently prevents many, many smaller orchestras and educational institutions from physically performing these pieces. It’s not a question of well, they just have to pay more. If they don’t have more they can’t play the piece. So they’re simply not playing those pieces.”
Justice Ginsburg wrote the majority opinion, in which Justices Scalia, Kennedy, Thomas, Sotomayor, and Chief Justice Roberts joined and held that § 514 does not violate the Copyright Clause. The Court wrote that the “limited times” language from the Copyright Clause does not restrict Congress from taking works out of the public domain because the works gain copyright protection only for the period which they would have sustained had they not been placed in the public domain. The Court also wrote that the Copyright Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause” and that the Copyright Clause does not only apply to newly created works, but also to works already existing. Finally, the Court wrote that testimony heard by Congress suggested that § 514 would serve the goals of the Copyright Clause because it would “expand the foreign markets available to U.S. authors and invigorate protection against piracy of U.S. works abroad, thus benefitting copyright-intensive industries stateside and inducing greater investment in the creative process.” Justice Breyer filed a dissenting opinion, in which Justice Alito joined, arguing that § 514 did not serve the purpose of the Copyright Clause to create incentives for authors to create new works.