Is It Unconstitutional for Congress to Take Foreign Works Out of the Public Domain?
By Julie Dorais – Edited by Matt Gelfand
Golan v. Holder, No. 10-545 (U.S. 2010)
Transcript of Oral Arguments
On October 5, 2011, the Supreme Court heard oral arguments for Golan v. Holder. The case involves the challenged constitutionality of Section 514 of the Uruguay Round Agreements Act (codified as 17 U.S.C. §§ 104A, 109), which extends copyright protection to certain foreign works that have already been in the public domain in the United States. Petitioners claim that Section 514 violates both the First Amendment and Progress Clause of the Constitution. The government in turn contends that Congress acted constitutionally and in accordance with a significant interest in complying with international obligations.
The case comes up after the Tenth Circuit upheld the constitutionality of Section 514 in two separate decisions, with the first decision rejecting the Progress Clause challenge and the second decision rejecting the First Amendment challenge. The Digest covered the Tenth Circuit’s first decision, the district court’s decision on remand, the Tenth Circuit’s second decision, and the plaintiffs’ petition to the Supreme Court. For commentaries on the oral arguments, see Copyright and Trademark Blog and The Denver Post.
Anthony Falzone appeared on behalf of petitioners. He began by arguing that Section 514 violates the Progress Clause (Article I §8, cl. 8 of the Constitution), which gives Congress the power to grant copyrights for “limited Times” and to “promote the . . . useful arts.” He first claimed that Section 514 violates the “limited Times” requirement because it grants a term of protection after the first limit passed, even if the limit had been “zero.” According to Falzone, Congress has the power to lengthen the limit, see Eldred v. Ashcroft, but does not have the power to grant another term to a work already in the public domain. However, Justices Ginsburg and Sotomayor both emphasized that the foreign works in question either never enjoyed copyright protection in the U.S., or did not enjoy a full term.
Secondly, Falzone argued that Section 514 fails to “promote the…useful arts” because it does not affect ex ante incentives. Justice Sotomayor noted that it could encourage foreign authors to exploit their works in the U.S., and Chief Justice Roberts also mentioned that it could “further the arts” if it played a role in obtaining “reciprocal protection” abroad for U.S. authors and artists. Justice Scalia seemed to agree with Falzone that simply increasing the financial reward for works created long ago does not further the arts.
Solicitor General Verilli appeared on behalf of the government. He first criticized the characterization that the foreign works in question had “expired” terms. He also claimed that Section 514 furthers the arts because it is the “the price of admission to the international [copyright] system.” Justice Scalia expressed discomfort with his emphasis on the “national interest,” stating that Congress “either had the power to do this under the Copyright Clause or it didn’t” and that a treaty could not change that.
Relatively little time was spent on the First Amendment question. Falzone briefly argued that Section 514 takes away “public speech rights, and turn[s] them into somebody else’s private property.” Verilli argued that Section 514 does not implicate the First Amendment; however, even if it does, the government’s substantial interest in ensuring international rights outweighs the minor impact on free speech. Chief Justice Roberts questioned why this is not a serious First Amendment issue if it prevents musicians from performing a song, for instance, that they once were free to perform. Verilli responded that this was consistent with the general concept of copyrights and expressed his concern that “once the Court gets into the business of First Amendment analysis, there is no stopping point.” In his rebuttal, Falzone in turn expressed his concern that “the government can get around First Amendment limits by signing a treaty.”
The upcoming decision may have an impact that reaches beyond the status of the copyrighted works in question. The Court may be able to decide the case without resolving all of the issues that were raised. However, directly or indirectly, it may reveal what role it believes international obligations should play in determining constitutional boundaries.
Julie Dorais is a 3L at Harvard Law School.