Golan v. Holder (2011)

Posted by bradlemn on Friday, September 16, 2011 in Articles.

The October, 2011 Roundtable was on Golan v. Holder, which was argued at the Supreme Court on October 5, 2011. In Golan, the Court considered whether Congress may constitutionally confer copyright on works that have fallen into the public domain. Congress created a new class of “restored” works in 1996 in order to fulfill its obligations under the Berne Convention, an international copyright treaty.

Professor Tyler T. Ochoa introduced the case, discussed the history of the Berne Convention, and analyzed how the Court’s decision will affect the idea of the public domain. Professor Daniel Gervais took a closer look at the Berne Convention. He argued that Berne is a flexible document and that Congress provided greater protection to restored works than is actually required by the treaty. Dale Nelson, Senior Intellectual Property Counsel at Warner Bros., questioned whether restoration has had as significant an effect on the public domain as its detractors believe. She argued that the benefits of restoring foreign works to copyright greatly outweigh the burdens to users. Professor David Olson looked at Golan’s constitutional questions from a perspective not emphasized in the parties’ briefs. He argued that, because restoration is in violation of the Progress Clause, the Government can assert no legitimate interest to support its claim that restoration does not unconstitutionally restrict the Petitioners’ First Amendment speech rights. Finally, Professor Elizabeth Townsend Gard took a detailed look at the mechanics of the statute enacting copyright restoration. In her view, the statute does not achieve the Government’s stated interests and transgresses the traditional contours of copyright. She provided several recommendations for statutory amendments that would make determination of public domain status a more manageable exercise.

Roundtable: Introduction

Is the Copyright Public Domain Irrevocable? An Introduction to Golan v. Holder
PDF · Tyler T. Ochoa · 64 Vand. L. Rev. En Banc 123 (2011).

Traditionally, the copyright public domain has been considered irrevocable. When a work enters the public domain, even if it failed to obtain any copyright protection in the first place, it remains in the public domain. However, Congress breached this traditional limitation when it enacted section 514 of the Uruguay Round Agreements Act in 1994. Section 514 “restored” copyright protection in the United States for all works of foreign origin that were not yet in the public domain in their source countries, but that were in the public domain in the United States for various specified reasons. By removing an entire body of works from the public domain, Congress challenged the idea that the Patent and Copyright Clause implicitly limits Congress’s power to grant patents and copyrights over material that previously was in the public domain and could be freely used by anyone.