Golan v. Holder: Opening the Door to Free Works from the Public Domain, But How Wide?

Vol. 4 No. 5

By

Hayden W. Gregory is legislative consultant for the ABA Section of Intellectual Property Law in Washington, D.C. He can be reached at hayden.gregory@americanbar.org.

In Golan v. Holder, 132 S. Ct. 873 (2012), decided on January 18th, the Supreme Court was called upon to squarely rule on the lingering question whether, consistent with the Patent and Copyright Clause of the Constitution, Congress has the power to extend copyright protection to works that are in the public domain. The case also provided an opportunity for the court to weigh, and determine the weight to be assigned to, international copyright norms and the economic impact on U.S. copyright owners of U.S. government policies that adhere to or depart from those norms.

Golan v. Holder grew out of litigation concerning section 514 of the Uruguay Round Agreements Act (URAA), Pub. L. No. 103-465, 108 Stat. 4809, 4976 (1994), codified at 17 U.S.C. 104(A). The URAA was enacted to fulfill legal obligations that the United States incurred when in April 1994 it signed a number of trade agreements, including the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs). The origin and raison d’être of section 514 was not the TRIPs Agreement itself, but rather the action of the United States six years earlier in joining the 1886 Berne Convention for the protection of Literary and Artistic Works, which resulted in the enactment of the Berne Convention Implementation Act of 1988 (BCIA), 102 Stat. 2853. One such obligation that the U.S. seemingly incurred in joining Berne was to extend copyright protection to works of foreign authors from other Berne countries that for various reasons had never been protected in the United States, but which had not fallen into the public domain in the country of origin. The reasons for the absence of U.S. protection included failure of the U.S. to protect works from the country of origin at the time of publication of the works; the works were sound recordings fixed before 1972, when the United States first extended copyright protection to such works; or the author had failed to comply with U. S. statutory formalities that were inconsistent with Berne and were in existence at the time the works were created.

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