Congress's Power to Restore Copyright Protection to Works That Have Entered the Public Domain: 'Golan v. Holder' [August 30, 2011] [open pdf - 230KB]
"'Golan v. Holder' is a case that will be heard by the U.S. Supreme Court on October 5, 2011. The Court will consider whether Congress has the power to grant copyright protection to creative works that have already entered the public domain. At issue in Golan is the Uruguay Round Agreements Act (URAA) of 1994 that Congress passed in order to bring the United States into compliance with international agreements on intellectual property (IP). Section 514 of the URAA 'restored' copyrights in certain foreign works that were previously in the public domain in the United States. After these works became protected by copyright as a result of URAA, anyone wishing to use them needs to seek prior permission from the copyright holders and also likely pay licensing fees. Although it is difficult to determine the exact number of foreign works that the URAA removed from the public domain, the former Register of Copyrights estimated that it may be in the millions. […] The U.S. Court of Appeals for the Tenth Circuit determined that § 514 of the URAA was within Congress's power under the Copyright Clause and that it did not violate the free speech and expression rights of the plaintiffs who had enjoyed freely using the foreign works that were in the U.S. public domain before the restoration of their copyright protection. The Supreme Court's anticipated ruling in 'Golan v. Holder' is expected to provide definitive answers to the following significant questions in copyright law: whether Congress is prohibited by the Copyright Clause from taking works out of the public domain, and whether § 514 of the URAA violates the First Amendment to the U.S. Constitution."
CRS Report for Congress, R41977