Notwithstanding the solicitor general’s position, the U. S. Supreme Court has agreed to rule on a basic issue of U.S. copyright law, i.e., whether Congress has the power to revive copyright protection once it has expired. Golan v. Holder, Case No. 10-454 (Supreme Ct., March 7, 2011).

In 1994 Congress enacted the Uruguay Round Agreements Act (URAA) that restored the copyright term for works created by foreign authors who had lost their rights due to some reason other than expiration of the copyright term, e.g., failure to renew their copyrights or failure to include a notice of copyright on the works. The law was designed to insure that works that enjoy copyright in one country will get similar protection in other countries. Many of the restored copyrights extended to works that had previously been in the public domain in the United States.

A district court held the law unconstitutional on First Amendment grounds at least “to the extent §514 (of the URAA) suppresses the right of reliance parties to use works they exploited while the works were in the public domain.” On appeal, the Tenth Circuit panel reversed. The plaintiffs petitioned the Supreme Court for certiorari.

The petition for certiorari sought review based on the following two questions:

  1. Does the “Progress Clause” of the U.S. Constitution (ALJ, §8, cl. 8) prohibits Congress from removing works from the public domain?
  2. Does the removal of those works from the public domain violate the First Amendment of the U.S. Constitution?  

This case bears some similarity to Eldred v. Ashcroft, in which the Supreme Court upheld the constitutionality of the 1998 Copyright Term Extension Act (CTEA), which had extended copyright terms by an additional 20 years. (See IP Update, Vol. 6, No. 1.) In Eldred the Supreme Court recognized that Congressional authority to grant copyright was limited by the “limited times” provision of the Progress Clause of the U.S. Constitution. However, in Eldred the Supreme Court concluded that the 20-year extension was sufficiently limited to pass constitutional muster.