Wednesday, January 18, 2012

U.S. Supreme Court Rules That Congress Can Allow Certain Public Domain Works to be Restored to Copyright

Golan v. Holder (Congress Can Pass Legislation to Copyright Works in the Public Domain)

This particular Golan v. Holder ruling is the result of the U.S. coming into compliance with various international intellectual property treaties including the Agreement on Trade-Related Aspects of Intellectual Property Rights (as a part of The Uruguay Round Agreements Act (URAA)). As a result of these treaties, Section 514 of URAA (Section 104A in the Copyright Act) grants copyright protection to works protected in their country of origin, but lacking protection in the United States for any of three reasons: (1) The United States did not protect works from the country of origin at the time of publication; (2) the United States did not protect sound recordings fixed before 1972; or (3) the author had not complied with certain U.S. statutory formalities.

In 1996, copyright was automatically restored in certain foreign works that were then in the public domain in the United States but were protected by copyright or neighboring rights in the source country. Owners of a restored work were directed to notify reliance parties if the owner of the rights planned to enforce the rights. One means of notification was filing with the Copyright Office a Notice of Intent to Enforce (NIE) a Restored Copyright.

Works encompassed by §514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. As a consequence of the barriers to U. S. copyright protection prior to §514’s enactment, foreign works “restored” to protection by the measure had entered the public domain in this country. To cushion the impact of their placement in protected status, §514 provides ameliorating accommodations for parties who had exploited affected works before the URAA was enacted.

The potential danger of this ruling is that it provides an additional precedent for Congress to "re-copyright" works that may have fallen in the public domain. While this ruling applies to foreign works, there may come a time where Congress attempts to pass (or actually passes) legislation to re-copyright public domain works by American authors. If so, the constitutionality of any such law will have to be judged versus the Copyright Clause. Until then, this ruling will govern.

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