Supreme Court Argument Preview: Golan v. Holder - Oral Argument Scheduled for October 5, 2011

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Eight years ago in Eldred v. Ashcroft, the Supreme Court addressed Congress’ power under the Progress Clause of the Constitution, which provides Congress with the ability to grant copyrights and patents to “promote the Progress of Science and the useful Arts.” In Eldred, the Court rejected a challenge to a copyright term extension act which extended existing copyrights and provided for a copyright term of 70 years plus the life of the author, concluding that Congress had broad powers to determine what copyright scheme best promoted progress.

Now, in Golan v. Holder, the Court again faces a challenge to the outer limits of congressional power in enacting copyright laws. The case concerns a 1994 act of Congress which implemented treaties aimed at harmonizing global copyright laws. The act restored copyrights to foreign works, including numerous famous orchestral pieces, that had previously been in the public domain in the U.S. Petitioners, a collection of orchestra conductors, educators, and others that have relied on the public domain in their work, argue this violates the principle that works cannot be removed from the public domain, and highlight the potential danger in granting Congress a restoration power. The government counters that such restorations have previously occurred in both copyright and patent arenas, and that this is a rational exercise of Congress’ power by ensuring compliance with international obligations, promoting recognition of rights for American authors abroad, and remedying past inequalities in copyright protection.

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