On January 18, 2012, a 6-2 majority of the U.S. Supreme Court affirmed the constitutionality of the Uruguay Round Agreements Act (URAA), granting copyright protection to certain foreign works that had previously been in the public domain in the U.S. In so doing, the Supreme Court affirmed the Tenth Circuit’s decision in Golan v. Holder, 609 F.3d 1076 (10th Cir. 2010).
In this case, a group of orchestra conductors, musicians, publishers and others brought an action challenging the URAA on the grounds that Article I, § 8, Cl. 8 of the Constitution (the “Copyright Clause”), together with the First Amendment, restricted the ability of Congress to grant copyright protection to works that had previously been in the public domain. Codified at 17 U.S.C. § 104A and 109(a), the URAA extends copyright protection to works that obtained copyright protection in their countries of origin, but had no such protection in the United States for one of three reasons: (i) an absence of copyright relations between the country of origin and the United States at the time of publication; (ii) the lack of protection for sound recordings fixed before 1972; and (iii) a failure to comply with statutory formalities peculiar to the Copyright Act in the U.S. The petitioners contended that the URAA violated the “limited Times” language of the Copyright Clause because it extended protection to existing public domain works rather than incentivizing the creation of new works, an argument rejected by the Court.
Writing for the majority, Justice Ginsburg noted that the Court’s decision in Eldred v. Ashcroft, 537 U.S. 186 (2003)—a decision that had confirmed the ability of Congress to extend the term of copyright for preexisting works—foreclosed the petitioners’ “limited Times” challenge: “The Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works … the Clause ‘empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.’” Golan v. Holder, 132 S.Ct. 873, 888 (2012). The majority found the petitioners’ First Amendment argument similarly unavailing: “[s]ome restriction on expression is the inherent and intended effect of every grant of copyright,” and “[n]othing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain.” Id. at 889-90. Justice Breyer, joined by Justice Alito, dissented from the majority’s opinion, stating that the URAA’s effect of removing material from the public domain meant that “the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute.” Id. at 912.
The dissent notwithstanding, the majority opinion confirms the broad scope of Congressional power to define the boundaries of copyright protection.