Golan v. Holder

On Wednesday, January 18, the Supreme Court affirmed the Tenth Circuit decision on Golan v. Holder, restricting usage of copyrighted works previously considered in the public domain. Justice Ginsburg wrote the majority opinion in the 6-2 decision, with Justice Breyer writing the dissent, supported by Justice Alito. (Justice Kagan had earlier recused herself on account of prior involvement with the case while Kagan served as Solicitor General.)

Golan v. Holder decided the constitutionality of Section 514 of the Uruguay Round Agreements Act (1994). The URAA made amendments to U.S. copyright law based on the Marrakech Agreement from the Uruguay Round of negotiations during the establishment of the World Trade Organization.Under Section 514, Congress was given the authority to remove works from the public domain, which petitioners in Golan v. Holder argued was a violation of the First Amendment. 

The constitutionality of the URAA was first addressed in the U.S. District Court of Colorado as Golan v. Gonzalez (2005), in which petitioners argued was unconstitutional based on the Copyright and Patent clause (article 1, section 8, clause 8) of the Constitution. The Copyright and Patent clause allows Congress the authority “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The key term in contention was “limited,” as the URAA seemingly allows Congress an ability to secure copyright privileges without the limits on time previously established by public domain usage.

Golan v. Gonzalez was eventually appealed to the Tenth Circuit Court of Appeals, where Judge Robert H. Henry affirmed the prior court’s holding that URAA was not unconstitutional because of a violation with the Copyright and Patent Clause. However, the court decided that the URAA had significant impact on the right to free expression, and thus remanded the case for First Amendment review.

Eventually, the case was reconsidered as Golan v. Holder, and was granted certiorari in March of 2011. Oral arguments were held October 5, 2011. Regarding the First Amendment issue, petitioners argued that implementing the URAA would restrict the free expression of those who have accessed or used the works previously held under public domain.

In its final opinion, the Court held that Section 514 violates neither the First Amendment nor Congress’s authority under the Copyright and Patent Clause. Essentially, this means that Congress has the legal authority to remove works from the public domain and re-establish copyright protections, limiting their free usage.

Justice Ginsburg’s opinion referred back to the Court’s holding in Eldred v. Ashcroft (2003), which affirmed Congress’s authority to extend copyright terms, despite the Copyright and Patent Clause. In this case, the Court found no limitation inherent in the Copyright Clause that would prevent Congress from extending or re-instating copyright protection to any works in the public domain.

The practical impact of this case on the public is the removal of possibly millions of works previously held open for usage in the public domain. Films previously free to screen under public domain rights can now again be placed under copyright restrictions. The effect of Golan v. Holder on musicians—especially classical ensembles—could potentially be devastating, as performances could incur the added costs of high licensing fees for pieces previously free under public domain. Another consequence of this decision could be significant ramifications for those who read literature digitally. Services like Google Books and the Gutenberg Project release book transcriptions and scans of public domain works, free for anyone to download and read. If these works were to be placed back under copyright protection, then readers would be forced to actually buy books for their Kindles.

Golan v. Holder effectively redefines a fundamental concept in intellectual property law, expanding Congress’s authority regarding copyright protection, and limiting the scope of public domain.

Tiffany Li, 1L, can be reached at tiffany.li@gulawweekly.org.