The United Supreme Court on January 18, 2012 in Golan v. Holder rejected a challenge to Congress’ authority to modify the copyright status of certain foreign works previously in the public domain. Writing for the Court, Justice Ginsburg rejected petitioners’ assertion that once a work has entered the public domain it must forever remain there, and that Congress had no power to alter the public domain status of a work.
In 1994, Congress gave works enjoying copyright protection outside of the United States the same full term of protection as U.S. works by fully implementing the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in § 514 of the Uruguay Round Agreements Act. The effect of Congress’ action was to put foreign works on equal footing with U.S. works by granting prospective copyright protection to works that had previously not been protected, including works from countries of origin that were not protected in the U.S. at the time of publication, such as Soviet Russia.
The petitioners in Golan included orchestra conductors, musicians, publishers, and others who had been able to use foreign works, including compositions by Shostakovich and Prokofiev, free of charge prior to the passage of § 514. Petitioners argued that Congress had exceeded its authority under the Copyright Clause of the Constitution and the First Amendment in passing § 514.
Relying largely on its 2003 decision in Eldred v. Ashcroft, which rejected a challenge to Congress’ extension of the term of copyright protection, the Court found that Congress was within its authority in the Copyright Clause in restoring copyright to foreign works that were previously in the public domain. The Court held that it would “not second-guess the political choice Congress made between leaving the public domain untouched and embracing Berne unstintingly” by invalidating § 514.
The Court also rejected petitioners’ First Amendment argument, finding that the speech safeguards built into copyright law, including the idea/expression dichotomy and fair use defense, obviated reviewing § 514 under a heightened standard. The Court found that petitioners did not have a First Amendment right to perform foreign works without royalty. Indeed, Justice Ginsburg – a well known music lover – found that § 514 placed foreign works on the same status as U.S. works. “Prokofiev’s Peter and the Wolf could once be performed free of charge; after § 514 the right to perform it must be obtained in the marketplace. This is the same marketplace, of course, that exists for the music of Prokofiev’s U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers.”
In his dissent, which was joined by Justice Alito, Justice Breyer argued that § 514 ran afoul of the Copyright Clause and the First Amendment because it inhibited the “important preexisting flow of information.”