How Golan v. Holder (2012) is Viewed in the Continued Expansion of U.S. Copyright Law Throughout History Until the 20th Century

Writen by Juliana

Abstract

This article will review the constitutionality of Congress continually extending copyright terms throughout the 20th century by examining Golan v. Holder, 565 U.S. 302 (2012) and the evolution of copyright law from the first mention of it in the Constitution through the most recent copyright law of the 20th century, the Sonny Bono Copyright Term Extension Act of 1998. It will also touch upon the only case used as precedent for Golan v. Holder, 565 U.S. 302 (2012), Eldred v. Ashcroft, 537 U.S. 186 (2003) which was similarly about how Congress has overstepped their powers by continuously extending copyright terms. The case of Golan v. Holder, 565 U.S. 302 (2012) questions Congress’s authority over taking works out of the public domain. The case was petitioned by a group of musicians, publishers, orchestra conductors, and others who previously enjoyed free access to the works that were taken out of public domain, including those by C.S. Lewis, Alfred Hitchcock, and Pablo Picasso, became copyrighted. This was due to the United States joining the Berne Convention, requiring them to protect the work of other member countries unless the copyright expired. As is seen in the evolution of copyright law, Congress continuously extends protection. While there is no permanent copyright protection law in place, who is to say Congress won’t cross that boundary in the near future.

Welcome! This is your first post. Edit or delete it, then start blogging!

Introduction

Almost everything is copyrighted or can be copyrighted. Many paintings, films, songs,
and books grant exclusive rights to their authors. To use any part of any copyrighted work,
someone must pay for the rights. Works that are not copyrighted are in the public domain, which
anyone can use for free. It is understandable why there might be some public outcry when works originally in the public domain receive more protection and are taken out of it. The U.S.
Supreme Court case of Golan v. Holder, 565 U.S. 302 (2012) further established Congress’s
constitutional power in expanding copyright law even if they should not.

Summary/Holding

The Supreme Court case of Golan v. Holder, 565 U.S. 302 (2012) questions the
constitutionality of whether Congress should be allowed to take works out of the public domain.
The United States became a party to the Berne Convention for the Protection of Literary and
Artistic Works (aka the “Berne Convention”) in 1989. Article 18 of Berne requires countries to
protect the works of other member countries unless the works’ copyright term has expired in
either the country where protection is claimed or the country of origin. So, Congress applied the
term of protection available to United States works that were previously unprotected. Section
514 of the Uruguay Round Agreement Act (URAA) granted copyright protection to works
protected in their country of origin that originally lacked protection in the United States. The
URAA was passed in 1994 when the United State was obligated to do so after agreeing to the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO). TRIPS was compliant with the Berne Convention although it did also “provided additional obligations regarding enforcement that are subject to dispute resolution at WTO.” This included copyright law.¹ As a result of Section 514, after being previously barred from U.S. copyright protection, foreign works were restored to protection and have been removed from the public domain in the United States.²

The petitioners of Golan v. Holder, 565 U.S. 302 (2012) consisted of orchestra conductors, musicians, publishers, and others including Lawrence Golan who formerly enjoyed free access to works Section 514 removed from the public domain. The respondent was Eric H. Holder, Jr., the U.S. Attorney General at the time. In 2005, the petitioners of the case claimed that in passing Section 514, Congress exceeded its authority under the Copyright Clause, extending beyond the limitations of the First Amendment. “In 2009, the District Court said Section 514’s constriction of the public domain was not justifiable by any federal interest and violated the First Amendment. On appeal, the Tenth Circuit, examining the constitutionality of Section 514 under intermediate scrutiny, ruled that it did not violate the First Amendment because it advanced the states’ interest of protecting the copyrights of American works in foreign countries.”³

In 2011, the Supreme Court held that Holder was in the right. The majority opinion and holding, written by Justice Ruth Ginsburg with Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Sotomayor, affirmed the lower court in that Congress did have power to enact Section 514 and the Uruguay Round Agreement. “Based on prior copyright law, public domain is not untouchable, and congress may grant protection to previously unprotected works.”⁴ They did not agree with Golan’s argument that taking works out of the public domain go against the constitutional “limited Times” requirement that was mentioned in another copyright case, Eldred v. Ashcroft, 537 U.S. 186 (2003). The dissent, written by Justice Breyer with Justice Alito in agreement, said that Section 514 and the Uruguay Round Agreement did violate the First Amendment because they do not promote the production of new works. Justice Kagan refrained from giving an opinion in this case.

Works That Were Affected by this Case

Millions of original works that had previously been part of the public domain were affected
by Golan v. Holder, 565 U.S. 302 (2012). Many of them people view in art museums, check out
of libraries, or listen to more often than one would imagine. Some of the most notable works
affected include symphonies by Sergei Prokofiev, Igor Stravinsky, and Dimitri Shostakovich;
books by C.S. Lewis, Virigina Woolf, and H.G. Wells; films by Federico Fellini, Alfred
Hitchcock, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso (including one of his
most famous paintings, “Guernica”).⁵ Once works are in the public domain, they belong to the
public and remain property of the public, meaning they are free to use. The purpose of this was
to provide a limit on intellectual property and to prevent anyone from monopolizing an idea. A huge shift can be seen today in the public domain compared to the original intentions of the
framers of the Constitution.

Evolution of Copyright Law

Before 1896, works not copyrighted were referred to by the courts as “public property” or
“common property.” It was in 1896 when the U.S. Supreme Court first took the term “public
domain” from French law.⁶ Throughout the years, copyright laws have been protecting more
works and taking them out of the public domain. This was seen in Golan v. Holder, 565 U.S. 302
(2012) where the U.S. Supreme Court yet again sided with Congress. This has sparked much
debate as to whether copyright protection is good for the author and allows them to benefit
financially. If a work is protected for too long, even after an author is dead and the main appeal
of reaping financial reward for their work directly is impossible, it becomes more difficult for
people to gain access to the works and use them to build their own ideas upon.

Golan v. Holder, 565 U.S. 302 (2012) shows the court’s inactivity in ensuring Congress
does not overstep their power in expanding copyright laws. Historically, Congress has only
granted more protection for copyrighted works when modifying copyright law. Perhaps there
should be a limit at some point. There have not been any laws restricting copyright in any way. If
companies monopolize certain ideas and use them to make a profit for themselves years after the author has passed, this lack of regulation could prove to be a problem. Once a copyright is no
longer serving the original author, it should expire.⁷

I. The Copyright Clause of the Constitution

U.S. Const. art. I, § 8, cl. 8 outlines Congress’s power over intellectual property, including
copyrights. This clause is referred to as the Intellectual Property Clause, or sometimes the Patent
Clause, the Copyright Clause, or the Patent and Copyright Clause. The copyright section of the
clause details its intention for Congress to give “Authors” exclusive rights to their “Writings” to
“promote the Progress of Science.” At the time of the Constitution, the “Progress of Science”
meant anything that related to the creation and spread of knowledge and learning.6 Without legal
protection, others can just copy others’ creations and deny the original creators the ability to reap
the social and possible economic reward/recognition for their work.

There are two limitations to this clause. The first is that the exclusive rights can persist
only for “limited Times.” This was the argument used by the petitioners in Golan v. Holder, 565
U.S. 302 (2012). This provision is meant to prohibit Congress from providing perpetual
copyright, although the protection can be a long term. The second limitation is that the exclusive
rights must promote the progress of science or useful arts, however the Courts often refer to
Congress for what counts as such. One copyright-specific limitation of the clause is that only
original works can be copyrighted since “copyright extends only to the ‘Authors’ of ‘Writings.’”⁶

In Golan v. Holder, 565 U.S. 302 (2012), the argument is that by extending the copyright
protections of works originally in the public domain, the extension of copyright law does not
violate the “limited Times” provision according to the Court; however, there is a solid argument
for the provision being too broad. While it explicitly states that Congress cannot extend the
copyright forever, nothing is stopping them from extending the copyright for many, many years,
however long that may be. Though copyright law is not stopping Congress from continuously
extending copyright periods, if they continue to extend the protection in increments, they might
as well be extending it forever.

II. Copyright Act of 1790⁸