October 2011: Appellate Litigation Update

Overview of Intellectual Property Cases Before the Supreme Court in the October 2011 Term: In keeping with its recent trend, the Supreme Court has so far agreed to hear one copyright and several patent cases during the October 2011 Term.

Golan v. Holder, No. 10-545, was argued October 5, 2011, and addressed a copyright law issue. It concerns the constitutionality of Section 514 of the Uruguay Round Agreements Act (“URAA”). Congress enacted the URAA in 2004 to implement Article 18 of the Berne Convention for the Protection of Literary and Artistic Works, which requires that member countries afford the same copyright protection to foreign authors as they provide to their own authors. Because certain works by foreign authors had already entered the public domain in the United States by virtue of failures to comply with prior U.S. copyright formalities, lack of subject matter protection, or lack of national eligibility, Section 514 of the URAA restored the authors’ copyrights in those foreign works (with certain time-limited protections afforded to persons, called “reliance parties,” who were exploiting the foreign works in the United States). In other words, works that were in the public domain would now become subject to U.S. copyright protection.

A group of persons who have relied on public domain works for their livelihoods (including orchestra conductors, educators, performers, publishers, film archivists, and motion picture distributors) brought suit in the U.S. District Court for the District of Colorado, challenging Section 514 of the URAA as unconstitutional under the Copyright Clause of the U.S. Constitution, see U.S. Const., art. I, § 8, cl. 8 (granting Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”), and the First Amendment. The district court ruled in favor of the government, and the Tenth Circuit affirmed in a 2007 decision as to the Copyright Clause and a 2010 decision as to the First Amendment. Among the governmental interests cited by the Tenth Circuit in rejecting the First Amendment challenge was that U.S. protection of foreign works is necessary to ensure that other countries extend the protection of their copyright laws to U.S. works.

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