On Wednesday, the Supreme Court of the United States heard oral arguments on the much-awaited Golan v. Holder, a case that asks whether Congress may seize works from the public domain and restore their copyright protection.

At issue in Golan is the constitutionality of Section 514 of the Uruguay Round Agreements Act (URAA). The URAA reinstates copyright protection to foreign works whose countries of origin still recognize exclusive copyright. Congress passed the act to comply with the Berne Convention on Literary Property, an international agreement that requires signatories to honor each other’s copyrights.

The case’s outcome will affect millions of foreign works – including J.R.R. Tolkien’s Lord of the Rings trilogy, Sergei Prokofiev’s Peter and the Wolf, and H.G. Wells’ A Short History of the World — that were once part of the public domain. The petitioners, a group of musicians, artists, and movie distributors “who depend on the public domain for their livelihood,” argue that the the Copyright Clause’s text and history prohibit Congress from removing works from the public domain. They also contend the URAA fails First Amendment scrutiny because it “contracts the universe of speech and expression available to the public.”

Pablo Picasso's Guernica is among works the URAA removes from the public domain.

The Copyright Clause of the U.S. Constitution provides that Congress may grant exclusive rights for “limited [t]imes” to “promote the . . . useful [a]rts.” Although the Court in Eldred v. Ashcroft, 537 U.S. 186 (2003), held that Congress may extend copyright periods, it reaffirmed that those periods must be somehow “limited.”  The Golan petitioners argue that the Section 514 violates this principle because there is no limitation if works can be “reset or resurrected at any time.” Likewise, the petitioners argue that works that exceed the Copyright Clause infringe on “bedrock principles” of the First Amendment.

– Mike Walker

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