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Copywrong Part 3: Resurrection of Copyright to Works in the Public Domain

September 23, 2010

In Golan v. Holder, the 10th Circuit held that Section 514 of the Uruguay Round Agreements Act, codified at 17 U.S.C. 104a, and 109,  which grants copyright protection to some foreign works that were previously in the public domain, is not in violation of the First Amendment. Golan v. Holder involves declaratory judgment of constitutionality regarding a derivative work based on a work that was once in the public domain, but because of Section 514, had been removed from the public domain, and re-copyrighted.

Section 514 is a statute enacted by Congress in response to Article 18 of the Berne Convention, which requires that if a copyrighted work that had entered the public domain in one country for some reason other than term expiration, it must be restored to copyrighted status. The plaintiffs in Golan argued that this removal from the public domain violated First Amendment protections. This argument ultimately failed, and Section 514 was held constitutional on the theory that the government has an “important” interest in protecting American copyrights abroad, and that Section 514 was narrowly tailored to further that interest.

The holding of Golan is fairly reasonable, but its breadth and extreme deference to Congress raises serious concerns. In its deference to Congress the court makes almost no independent inquiry of the propriety of the statue. Instead simply stating that as an international issue, Congress is best suited to evaluate it. Maybe Congress is best suited to make decisions on international issues, but this is a federal law, and it is up to the courts to decide on its constitutionality.

As I have mentioned before, and as is clear from the hearings noted in Golan, Congress does not seem to give much consideration to anyone other than influential copyright holding companies. Purely economic considerations of the few drives decision making on copyright matters. Rarely, if ever, are issues like Constitutional policy, the value of the public domain, or the stimulation of innovation considered. It is disappointing to see the 10th Circuit incorporate this Congressional approach into their jurisprudence by allowing a further depletion of the public domain.

Another concern with Golan is that the breadth of the ruling is immense.  By justifying the “important government interest” on purely money-making factors, the ruling in Golan effectively allows Congress to grant copyright protection for any work, no matter what its public domain status, so long as it would make somebody money.

While the holding in Golan does not come as a great surprise, it would be nice to see some restraint in the breadth of the holding, and for the court to have put some pressure on Congress to consider something other than money when evaluating changes to copyright law.

One final note: while I am not too familiar with the takings clause, I wonder if it would have made for a better argument. The case did involve a derivative work, which is copyrighted in its own right, and in a sense this copyright was taken. Also, according to Golan, Congress did give consideration to a takings clause concern. Perhaps they structured the law in a way that would avoid the issue?

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