On 5 October 2011, the United States Supreme Court heard oral arguments in Golan, et al., v. Holder, et al. (docket no. 10-545), a case concerning whether the United States Congress had the requisite power to remove numerous foreign works from the public domain.  Congress’ actions resulted in foreign works that were protected in the country in which they were originally created or published, but that had been previously denied protection in the US, being afforded copyright protection.  Such works included music by the composers Shostakovich, Stravinsky and Prokofiev, and films by Hitchcock and Fellini. 

The case was on appeal from the United States Court of Appeals for the Tenth Circuit which found that the law was valid.

Specifically, the Petitioners have argued that Congress violated First Amendment rights and the Constitution when it enacted the Uruguay Round Agreements Act (“URAA”) in 1994.  The URAA gave effect to provisions of international conventions and agreements seeking to harmonise parties’ intellectual property laws by, for example, restoring copyright in certain foreign works.

Underlying the constitutional and free speech arguments is the argument that to remove such works from the public domain is an overly restrictive impediment hindering creative advancement, knowledge and learning.  Lawrence Golan, the named petitioner and a professor at the University of Denver and orchestral conductor, is said to demonstrate that the repercussions of the URAA primarily impact small and community orchestras.  However, large companies such as Google also support Professor Golan’s case. 

On the other side of the ring, the US Attorney General has argued that the URAA merely rectified a problem for previously unprotected foreign authors and it was in the US national interest to be part of an international copyright system.

This case is interesting in that it embodies the tension between protection of copyright owners’ rights versus liberal access to works for innovation and creation (the key public interest considerations underpinning copyright regimes around the world).  This is a well-worn battleground on which many a war has been waged, particularly in the US.  For example, earlier this year we considered this same tension in the context of the United States’ fair use exception, derivative works and appropriation art (See our blog post, “Art, copyright and transformation” here). 

It is not yet clear which way the decision will go, with both sides encountering thorough questioning from the Judges.  However, it is clear that copyright continues to be a fraught issue and with considerations of the greater good, progress, creation and rights of individual authors all having to be considered, it does not appear to be a clear case of (copy)right and wrong.