Oral argument: Oct. 5, 2011
Appealed from: United States Court of Appeals for the Tenth Circuit (June 21, 2010)
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.
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?
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?
In 1989, the United States became a party to the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”). See Golan v. Holder, 609 F.3d 1076, 1080 (10th Cir. 2010). The Berne Convention called for its member nations to provide the same copyright protections to each others’ authors as they would for their own. See id. 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. See id. However, no further protection was required for works that entered a member nation’s public domain because copyright had expired. See Berne Convention for the Protection of Literary and Artistic Works art. 18, Sept. 9, 1886, 1 B.D.I.E.L. 715. 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. See Golan, 609 F.3d at 1080–81. Among other things, TRIPs required compliance with Article 18 of the Berne Convention. See id. In response, Congress enacted the Uruguay Round Agreements Act (“the Act”). See id.
Many artists, authors, and educators use public domain works to sustain their livelihoods. See Golan, 609 F.3d at 1081-82. 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. See Golan, 609 F.3d at 1081-82. The district court disagreed with Golan, and granted summary judgment for the government on all claims. See id.
In 2005, Golan appealed the case to the United States Court of Appeals for the Tenth Circuit. See Golan v. Holder, 501 F.3d 1179 (10th Cir. 2007). 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. See id. at 1182–87. It sent the case back to the district court to determine whether Section 514 violates the First Amendment. See id.
In 2009, the district court granted summary judgment for Golan on the remanded claim, finding that Section 514 violated the First Amendment. See Golan v. Holder, 611 F. Supp. 2d 1165, 1177 (D. Colo. 2009). 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. See Golan, 609 F.3d at 1095. On March 7, 2011, the Supreme Court granted certiorari. See Golan v. Holder, 131 S. Ct. 1600 (2010).
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. See Brief of Amici Curiae American Library Association et al. in Support of Petitioners at 17–19. 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. See Brief of Amicus Curiae ACLU in Support of Petitioners at 10–11. Google, Inc. (“Google”) notes that Section 514 may create orphan works due to the difficulty inherent in locating copyright holders of older foreign works. See Brief of Amicus Curiae Google, Inc. in Support of Petitioners at 14–16. 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. See id. at 16–18. 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. See Brief of Amici Curiae Public Domain Interests in Support of Petitioners at 22–25.
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. See Brief of Amicus Curiae American Intellectual Property Law Association in Support of Respondents at 18. 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. See Brief of Amicus Curiae Motion Picture Association of America in Support of Respondents at 26–27. 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. See id. at 27. 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. See Brief of Amicus Curiae International Coalition for Copyright Protection in Support of Respondents at 32–34.
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. See Brief for Respondents, Eric H. Holder, Jr., Attorney General, et al. at 44. 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. See Brief of Amicus Curiae American Bar Association in Support of Respondents at 17–18. The International Publishers Association points out that Congress must fully adhere to Berne Convention standards in order to avoid trade sanctions. See Brief of Amici Curiae International Publishers Association et al. in Support of Respondents at 22–24. 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. See Brief of Amicus Curiae AIPLA at 19.
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. See Brief for Petitioners, Lawrence Golan, et al. at 48–51. 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. See Brief of Amicus Curiae Public Knowledge in Support of Petitioners at 8–10. 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. See Brief for Petitioners at 51–53.
Section 514 extends copyright protection to works that have entered the public domain. Several artists, performers, and educators (“Golan”) argue that Section 514 violates the Copyright Clause because restoring copyright protection to works that have entered the public domain exceeds Congress’s power to grant copyrights for a limited time. See Brief for Petitioners, Lawrence Golan et al. at 19. Golan also asserts that Section 514 violates the First Amendment because the statute does not further any important government interests. See id. at 48–52. On the other hand, Attorney General Holder argues that Congress is enabled to restore copyright protection to works that have entered the public domain under the Copyright Clause. See Brief for Respondents, Eric J. Holder, Jr., Attorney General, et al. at 13. Holder also contends that Section 514 is constitutional under the First Amendment because it serves the government interests of protecting American works abroad and complying with treaty obligations. See id. at 43.
May Congress Remove Works from the Public Domain by Restoring the Works’ Copyright Protections?
The Copyright Clause empowers Congress to grant authors exclusive rights over their works for a limited time. U.S. Const., Art I, § 8, cl. 8. Golan argues that Section 514 falls outside this power because the clause’s text and history deny Congress the power to remove works from the public domain. See Brief for Petitioners at 19. According to Golan, restoring copyrights to public domain works would violate the clause’s restriction that copyrights must only exist for a limited time, and would grant Congress unconstrained power to reset a work’s eligibility for protection. See id. at 22–23. Golan argues that allowing Congress to remove works from the public domain would make the limitation on the length of a copyright term irrelevant. See id. Golan contends that Section 514 contradicts Eldred v. Ashcroft, which held that an extension of copyright protection is permitted under the Copyright Clause so long as the copyright is restricted to a definite and predictable time period. See id. Golan further asserts that the Copyright Clause restricts Congress’s actions to those that promote progress, contending that Section 514 does not. See id. at 23–25. Finally, Golan argues that the early American history of copyright law demonstrates a clear intent on the part of the Constitutional Framers to ensure that public domain works stay permanently within the public domain. See id. at 30.
Attorney General Holder rejects the argument that the Copyright Clause's text or history restrains Congress’s power to remove works from the public domain. See Brief for Respondents at 14. Holder argues that the protections granted by Section 514 are for a limited time, since the copyright will expire on the same day that it would have expired if the copyright had been granted when the work was first published. See id. at 15. Holder further contends that, in Eldred, the Court interpreted “limited” to mean restrained or confined, not for a fixed duration. See id. at 14–15. Holder asserts that the preamble of the Copyright Clause, which describes the goal of copyright law as promoting progress, is not a limitation upon Congress’s power. See id. at 16. Turning to copyright history, Holder argues that historical practice demonstrates Congress’s authority to restore copyright protections to public domain works. See id. at 17–18. For example, Holder states that the Copyright Act of 1790 granted protection to a variety of works that were previously unprotected. See id. at 18–21.
Golan argues that Section 514 is subject to First Amendment scrutiny because restoring copyright protections alters the nature of copyright law. See Brief of Petitioner at 42. Golan cites the recognition in Eldred that copyright laws may be subject to First Amendment scrutiny if they fall outside the traditional boundary of copyright law. See id. at 42. For example, Golan asserts that, in Eldred, the Copyright Term Extension Act was held to be exempt from First Amendment review because the Act did not alter copyright law’s traditional boundaries. See id. However, Golan contends that Section 514 goes outside these traditional boundaries because it removes works from the public domain and restricts access to those works. See id. at 43. Golan claims that the interests at stake here are substantially different from those in Eldred because here everyone has a right to use works in the public domain, whereas Eldred did not concern works in the public domain. See id. at 44–45. Golan further argues that the limited access to copyrighted works that the fair use doctrine provides, as well as the limitation of copyright protection to the expression of ideas (not the ideas themselves), constitute inadequate free speech protections. See id. at 46–47.
Holder asserts that copyright restoration does not trigger First Amendment scrutiny because copyright protections are consistent with First Amendment values. See Brief for Respondents at 34. Holder states that copyright law developed alongside the First Amendment, suggesting that copyright protection is compatible with free speech principles. See id. at 35–36. Holder claims there are built-in mechanisms in copyright law that protect First Amendment values, such as the distinction between restrictions on use of expressions and ideas, and the fair use doctrine. See id. at 36–38. Holder further argues that the interest at stake here is similar to that in Eldred because in both cases the laws at issue protected works for certain uses only and for a limited time. See id. at 38–39.
Golan contends that First Amendment intermediate scrutiny should apply because Section 514 is content-neutral. See Brief for Petitioners at 41. To survive intermediate scrutiny, a statute must further an important government interest and impose restrictions no greater than is necessary to further the interest. See id. at 48. Golan asserts that none of the government’s claimed interests satisfies these requirements. See id.
First, Golan rejects the argument that protecting American authors’ rights abroad justifies Section 514; promoting these rights is not a legitimate state interest, according to Golan. See Brief for Petitioners at 48–49. Golan argues that Section 514 provides private economic gains to foreign authors for their existing public domain works in the hope of securing similar gains for American authors. See id. at 49. Golan contends that there is no important interest in trading public speech rights for the economic advantage of private parties. See id. at 49.
Second, Golan contends that Section 514’s restrictions are greater than necessary to further any interest in complying with the Berne Convention. See id. at 52. Golan argues that the United States has already received substantial benefits from that treaty, and that no other country has threatened the United States with the loss of copyright protections abroad. See id. Golan argues that the only harm Section 514 alleviates pertains to the refusal of a small number of nations to grant copyright protection to U.S. works already in the public domain. See id. at 53. Golan asserts that this harm is insufficient to justify restrictions on free speech. See id. Additionally, Golan asserts that the United States could comply further with the Berne Convention while restraining substantially less speech, because Berne already provides protection for parties who use public domain works. See id. at 54–56.
Holder first argues that Section 514 should be reviewed under the more deferential rational basis test, not intermediate scrutiny. See Brief for Respondents at 42. Nevertheless, Holder also argues that Section 514 meets intermediate scrutiny because it furthers at least two important government interests. See id. at 42–43. Holder asserts that Section 514 furthers an important government interest in securing greater copyright protections for American works abroad. See id.at 49. He contends that there is a legitimate interest in securing these protections because financial rewards for creative works are an important incentive for progress. See id. at 50. Holder also argues that, when passing Section 514, Congress introduced substantial evidence that the United States’ ability to secure rights abroad is tied to the United States’ willingness to provide reciprocal rights for foreign authors in the United States. See id. at 51–53. Additionally, Holder asserts that Section 514 serves an important interest in complying with existing treaty obligations, such as the Berne Convention. See id. Holder argues that Section 514 advances this interest because it reduces the likelihood that the United States will be subject to trade sanctions or WTO actions. See id. at 44. Holder notes that certain countries have previously found that the United States is not meeting its obligations. See id. at 45. Holder further contends that Congress is not required to employ the least-restrictive means to achieve important interests. See id. at 49.
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.
Edited by: Natanya DeWeese
Wex: First Amendment
Patently O: Copyright: Supreme Court to Hear Constitutional Challenge to Copyright Restoration (March 7, 2011)