Golan v. Holder: Copyright “Restoration”

Vol. 4 No. 5

By

Eric J. Schwartz is a partner with Mitchell Silberberg & Knupp LLP in Washington, D.C. Since 1998 he has been an adjunct professor of copyright law and international copyright law at Georgetown University Law Center (and is currently also an adjunct professor of copyright law at American University, Washington College of Law). Kim Nguyen and Matt Williams assisted with citations and gave helpful comments on the article in draft; however, the opinions expressed in the article are solely those of the author. Mr. Schwartz can be reached at ejs@msk.com.

In January 18, 2012, the U.S. Supreme Court upheld the constitutionality of a 1994 amendment to the U.S. Copyright Act in Golan v. Holder.1 That amendment, section 514 of the Uruguay Round Agreements Act (URAA), “restored” protection to certain qualified foreign works and sound recordings that were in the public domain in the United States.2 Section 514 was thus upheld, 16 years after it had entered into force (January 1, 1996), following a decade of challenges in the courts—yielding numerous district court and appellate decisions.3 The 6–2 majority decision in Golan, affirming the Tenth Circuit’s 2010 decision, was written by Justice Ginsburg; the dissent was written by Justice Breyer (joined by Justice Alito).4

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