Jessica McKinney | Bloomberg Law Golan v. Holder, No. 10-00545, 2012 BL 12206 (U.S. Jan. 18, 2012) In a significant decision with potentially far-reaching effects, the U.S. Supreme Court upheld the constitutionality of Section 514 of the Uruguay Round Agreements Act of 19941 ("URAA"), which restored the copyrights in millions of foreign works that were previously in the public domain in the United States for various reasons. In finding that Section 514 violated neither the First Amendment nor the Copyright Clause of the U.S. Constitution, the Court, in a 6-2 decision authored by Justice Ginsburg,2 held that the public domain is not "a territory that works may never exit."3 The Court's opinion was largely informed by its prior decision in Eldred v. Ashcroft,4 in which it upheld the constitutionality of the Copyright Term Extension Act under both the Copyright Clause and the First Amendment. In determining that Congress had the authority under the Copyright Clause to enact Section 514, the Court found nothing in the Clause's text, historical practice, or its own precedents to compel a contrary conclusion. The Court also determined that Section 514 did not merit heightened First Amendment scrutiny, and in doing so, clarified that the "traditional contours of copyright protection"5 referenced in Eldred only encompass the idea-expression dichotomy and fair use defense, neither of which were disturbed by Section 514. Ultimately, the Court concluded that Congress's reasons for enacting Section 514—namely, (1) to ensure exemplary compliance with the Berne Convention for the Protection of Literary and Artistic Works ("Berne" or "Berne Convention"); (2) to secure greater protection for U.S. authors' copyrights abroad; and (3) to remedy unequal treatment of foreign authors in the U.S.—were "well within the ken of the political branches."6 Justice Breyer filed a dissenting opinion, in which Justice Alito joined. Breyer emphasized that the statute does not encourage the creation of new works and inhibits the dissemination of old works that have already entered the American public domain. As such, Breyer would have found that the Copyright Clause, interpreted in light of First Amendment principles, did not authorize Congress to enact Section 514.
Section 514 of the URAA / Corresponding Provisions in the Copyright Act
The Underlying Decisions
Congress Had Authority under the Copyright Clause to Enact Section 514
Section 514 Does Not Violate the First Amendment
Justices Breyer and Alito Dissent
Has the Supreme Court Eviscerated the Public Domain?
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