Does a statute extending copyright protection to works that are in the public domain violate the First Amendment and the Copyright Clause of the United States Constitution?
Congress enacted Section 514 of the Uruguay Round Agreements Act in order to comply with the international copyright standards of the Berne Convention for the Protection of Literary and Artistic Works. Section 514 restores copyright protection to foreign works currently found in the public domain. Lawrence Golan and other performers, educators, and motion picture distributors brought this suit challenging Section 514, arguing that Congress’s removal of works from the public domain exceeded its Copyright Clause powers. Golan also argues that Section 514 violates the First Amendment because the law does not serve any important government interests. Attorney General Holder counters that the Copyright Clause does not restrict Congress’s authority to remove works from the public domain. He further argues that Section 514 does not violate the First Amendment because the government has a substantial interest in complying with the Berne Convention and protecting American works abroad. The Supreme Court’s decision will affect millions of foreign works currently in the public domain, existing and future works based on those foreign works, and the copyright protection of American works in foreign countries.
Questions as Framed for the Court by the Parties
1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?
2. Does Section 514 violate the First Amendment of the United States Constitution?
In 1989, the United States became a party to the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”). . The Berne Convention called for its member nations to provide the same copyright protections to each others’ authors as they would for their own. Article 18 of the Berne Convention further required all member nations to provide copyright protection to existing foreign works, even those already in the public domain. However, no further protection was required for works that entered a member nation’s public domain because copyright had expired. . Although the United States largely did not comply with Article 18 after joining the Berne Convention, it later signed onto the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPs”) during the Uruguay Round of 1994. Among other things, TRIPs required compliance with Article 18 of the Berne Convention. In response, Congress enacted the Uruguay Round Agreements Act (“the Act”).
Many artists, authors, and educators use public domain works to sustain their livelihoods. . In 2001, a group of artists, authors, and educators, including Lawrence Golan, filed an action in the U.S. District Court for the District of Colorado to challenge the constitutionality of Section 514, seeking declaratory and injunctive relief. . The district court disagreed with Golan, and granted summary judgment for the government on all claims.
In 2005, Golan appealed the case to the United States Court of Appeals for the Tenth Circuit. . The Tenth Circuit held that, although Section 514 did not exceed Congress’s power under the Copyright Clause of the United States Constitution, it did interfere with the First Amendment rights of those who use works in the public domain. . It sent the case back to the district court to determine whether Section 514 violates the First Amendment.
In 2009, the district court granted summary judgment for Golan on the remanded claim, finding that Section 514 violated the First Amendment. On appeal, the Tenth Circuit examined the constitutionality of Section 514 under the intermediate scrutiny standard, and held that the statute did not violate the First Amendment because it advanced the state’s interest of protecting the copyrights of American works abroad. On March 7, 2011, the Supreme Court granted certiorari.
The parties dispute whether Section 514 violates the Copyright Clause and the First Amendment of the United States Constitution. The Court’s decision on the constitutionality of Section 514 could affect the development of new creative works and the protection of American works under foreign copyright law.
Progress, Creative Investment, and Chilling Effects
The American Library Association (“ALA”) points out that Section 514 creates chilling effects, which deter beneficial projects involved with disseminating information to the public. . The American Civil Liberties Union (“ACLU”) argues that licensing fees required to use a work that has regained copyright protection under Section 514 will be prohibitively costly, especially for small towns, economically depressed cities, and college programs. . Google, Inc. (“Google”) notes that Section 514 may create orphan works due to the difficulty inherent in locating copyright holders of older foreign works. . In addition, Google argues that critical investment activity in programs that provide access to public domain works will cease due to the newly created uncertainty of the copyright status of works in the public domain. . Finally, the Public Domain Interests, a group of parties including the American Music Center and the College Art Association, assert that these chilling effects could reduce democratic participation, due to the restriction of public access to materials that are critical for cultural education. .
The American Intellectual Property Law Association (“AIPLA”) responds by arguing that Section 514 actually promotes progress because copyright protection provides an incentive for copyright holders to distribute existing works, and to create new ones. . AIPLA asserts that restored copyright protection gives authors a longer period of time to receive profits from their work, enabling them to use those profits to create new works. For example, the Motion Picture Association of America (“MPAA”) explains that the copyright protection of Section 514 encourages the investment necessary to restore classical foreign works and disseminate them to the public. . The MPAA further notes that, with the restored copyright protection under Section 514, authors can profit from their existing creations and use that income to finance new artistic endeavors. . Finally, the International Coalition for Copyright Protection, an organization of authors, artists, and publishers, asserts that, although chilling effects may occur, foreign copyright owners will be encouraged to make their works digitally available because they will know that their works will be protected.
Protection of American Works in International Copyright Law
Attorney General Holder argues that Section 514 is necessary in order for the United States to realize the full range of benefits of Berne Convention membership, including copyright protection of American works abroad. . The American Bar Association (“ABA”) notes that Section 514 protects American international interests because noncompliance with the Berne Convention may be challenged in the World Trade Organization. . The International Publishers Association points out that Congress must fully adhere to Berne Convention standards in order to avoid trade sanctions. . Finally, AIPLA argues that holding Section 514 unconstitutional could call into question Congress’s authority to protect intellectual property, undermining confidence in the American copyright system. .
Golan contests the assertion that Section 514 protects works of U.S. authors abroad; he questions whether evidence exists to show that foreign nations will actually extend reciprocal copyright protection to American works as a result of Section 514. . Public Knowledge asserts that Congress erred in balancing the costs and benefits of Section 514 since U.S. authors will only receive foreign copyright protection if other countries choose to grant it. . As for the Berne Convention, Golan argues that very few member nations believe the United States is actually out of compliance and that U.S. authors are thus not at risk of losing any existing protection overseas. .
The Supreme Court will decide whether Section 514 of the Uruguay Round Agreements Act is within Congress’s copyright powers and whether it violates the First Amendment. A group of artists, authors, and educators (“Golan”) assert that removing works from the public domain violates the Copyright Clause’s restrictions upon Congress’s power to grant a copyright for more than a limited period of time. Golan also argues that Section 514 violates the First Amendment because it does not further any important government interest. Attorney General Holder asserts that Congress is empowered to enact Section 514 because it only grants copyright protection until the time an original protection would have expired. Holder argues that Section 514 does not violate the First Amendment because it furthers the government’s interests in complying with the Berne Convention and securing rights for American authors abroad. The Supreme Court’s decision will affect millions of foreign works currently in the public domain, existing and future works based on those foreign works, and the copyright status of American works in foreign countries.
Wex: First Amendment
Patently O: Copyright: Supreme Court to Hear Constitutional Challenge to Copyright Restoration (March 7, 2011)