The curtain has closed on judicial review of Congress’ authority regarding copyright terms, and now Congress reprises on center stage. The high court, in Golan v. Holder, recently bowed to Congress’ broad constitutional authority to legislate the duration of copyright terms. Congress can now, under Golan, recapture copyright protection for significant volumes of work that have been already made freely available in the public domain, even overriding, in many cases, freedom-of-speech rights. The epic struggle between copyrights and the public domain will play on with Congress in the lead role. The public now must choose: sit and watch Congress or proactively assist in picking new scripts or cast members.
The plot in Golan centers on the power of Congress to remove works from the public domain—that body of un-copyrighted works that are property of no one and free to all (e.g., music, books, or artwork that were either outside the scope of copyright to begin with or have expired from copyright protection). In particular, Golan directly addresses the constitutionality of Congress’ 1994 enactment of Section 514 of the Uruguay Round Agreements Act [hereinafter “Section 514”]. By enacting Section 514, Congress brought the United States into compliance with the dominant international copyright scheme under the Berne Convention but, in so doing, removed a bulk of works by foreign authors from the public domain (e.g., certain symphonies by Shostakovich, books by Virginia Woolf, or artwork by Pablo Picasso).
More specifically, compliance with the Berne Convention required that the United States recognize copyrights in certain foreign works, at least to the same degree as applicable to domestic works. Section 514, therefore, established U.S. copyrights in works by foreign authors that were copyright-protected in the author’s home country but not in the United States. Reciprocally, this country’s compliance with Berne would allow works by United States authors to receive copyright protection in many foreign countries.
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