In Golan v. Holder, the Supreme Court recently held that the removal of certain works from the public domain by Congress does not infringe free speech rights under the First Amendment. In 1994, in order for the U.S. to meet its obligations under the Berne Convention, Congress enacted a statute that restored the copyrights of foreign authors whose works had fallen into the public domain for failure to comply with certain U.S. copyright requirements at the time, including the need to renew the works and publish the works with notice. A group of entities that had previously relied on the public domain status of pre-1989 foreign works sued the government, arguing that this restoration of rights interfered with free speech and exceeded Congress's powers under the Constitution. The Supreme Court rejected these arguments, finding that the Constitution does not exclude application of copyright protection to works in the public domain. The Court further reasoned that the creation of new works is not the only way that Congress may promote knowledge and learning and that inducing the dissemination of existing works is an appropriate means to promote knowledge and learning. With respect to the First Amendment arguments, the Court held that given the free speech protections that form a part of the "traditional counters" of copyright protection, including the "idea/expression dichotomy" and the "fair use" defense, this law does not violate free speech.
TIP: Determining whether a work is in the public domain (and therefore available for use without the need for a license) is often a difficult task. It is important to remember that material that may have once been in the public domain is not necessarily still in the public domain today.