The stakes in Golan v. Holder were high. Free speech rights, Congress’ power to grant copyright protection and America’s treaty obligations were all on the line.

Moreover, the case would determine the legal status of millions of works created in the 20th century by foreign authors. Among those works were well-known creations by Pablo Picasso, J.R.R. Tolkien, Igor Stravinsky, Alfred Hitchcock, H.G. Wells, M.C. Escher, Virginia Woolf, Federico Fellini and Sergei Rachmaninoff. These works were protected in the authors’ home countries, but not in the U.S.—
until Congress passed the Uruguay Round Agreements Act (URAA) in 1994.

Section 514 of the URAA plucked these works from the public domain and gave them copyright protection. This satisfied the United States’ obligations under international IP treaties, but it upset many orchestra conductors, film distributors, book publishers and others who had been using the works for free. Some of those who were unhappy filed suit, asserting that it was unconstitutional for Congress to remove the works from the public domain.

On Jan. 18, the Supreme Court upheld the URAA. By a 6-2 vote (with Justice Elena Kagan recusing herself) in Golan v. Holder, the court expansively interpreted Congress’ power under the Copyright Clause and severely restricted First Amendment challenges to copyright statutes. In short, the Supreme Court ruled that Congress has almost unchecked power to expand or revise copyright protection.

“The decision indicates Congress has a very free hand to do what it wants with copyright law,” says Prof. Mary Wong of the University of New Hampshire School of Law.

Promoting Progress

The Constitution says little about Congress’ power to enact copyright laws. It states simply that “Congress shall have Power … [t]o promote the Progress of Science … by securing for limited Times to Authors … the exclusive Right to their … Writings.”

This Copyright Clause empowers Congress to enact only laws that promote progress. This means copyright statutes must encourage the creation of new works, according to Justices Stephen Breyer and Samuel Alito. Section 514 of the URAA didn’t encourage any new creations. It gave copyright protection to only existing works, so the provision was unconstitutional, these Justices stated in Golan.

The majority of the court, however, interpreted the Copyright Clause differently. Writing for herself and five other Justices, Justice Ruth Bader Ginsburg held that progress is promoted by the creation and/or the dissemination of works. Section 514 encouraged the dissemination of existing works, so it was within Congress’ power under the Copyright Clause.

The majority’s interpretation of the Copyright Clause is “in some ways, not too surprising,” says Prof. Tyler Ochoa of Santa Clara Law School. “There is some historical evidence that was the meaning of ‘progress’ in the 18th century.”

What was surprising, according to Ochoa, “was that the court did not examine Congress’ assertion that giving someone an exclusive right in a work will promote its dissemination. Standard economic theory holds that making a work freely available, as opposed to giving it to a monopolist, will promote distribution. And that theory is supported by lots of empirical evidence.” Thus, even under the majority’s interpretation of the Copyright Clause, Ochoa and many other experts question whether Section 514 was truly constitutional.

Got Berne’d

There may be a reason, however, why the Supreme Court uncritically swallowed the notion that Section 514 promoted the dissemination of works: Had the court struck down the statute, the U.S. would have been in violation of the Berne Convention and the World Trade Organization treaties (see “Convention Commitments”).

“The Supreme Court put a lot of weight on the idea that the United States needs to be a part of the international community and be part of Berne. That’s a big reason why the statute was held to be constitutional,” says Anthony Falzone, executive director of Stanford Law School’s Fair Use Project and attorney for the parties attacking Section 514 in Golan.

Once the Supreme Court had determined that the Copyright Clause gave Congress the power to enact Section 514, the Justices had little problem finding the statute did not violate the First Amendment rights of those who wanted to use the works.

The court noted that under its 2003 decision in Eldred v. Ashcroft, a statute would be subject to First Amendment scrutiny only if it “altered the traditional contours of copyright protection.” Eldred didn’t explain what those contours were, but the majority in Golan interpreted them narrowly. The majority ruled that removing works from the public domain did not violate the traditional contours of copyright protection, so there was no First Amendment issue here.

Balanced Rights

Golan held that the traditional contours of copyright consist only of two longstanding doctrines mentioned in Eldred: the fair use doctrine and copyright’s distinction between ideas and expression.

Copyright protects only the expression of an idea, not the ideas or facts contained in a work. Those ideas and facts remain freely available to the public. Moreover, protected expression can be freely used by the public, provided the requirements of the fair use doctrine are met.

These two doctrines, according to the majority in Golan, balance the rights of copyright owners with the public’s free speech rights. They are “built-in First Amendment accommodations,” and so long as a statute does not disturb these doctrines, the statute is not to be subject to scrutiny, the majority held.

For more than a century, Congress has repeatedly expanded the scope and duration of copyright protection. Golan gives Congress a green light to continue this trend, unencumbered by almost any Constitutional limitations. “It places prospectively most things Congress might choose to do with copyright law off limits to judicial scrutiny under either the Copyright Clause or the First Amendment,” says Prof. Julie Cohen of Georgetown Law School.

This will push future battles over copyright legislation from the courts to the political arena, according to many experts. Indeed, these experts assert, copyright already has become a political issue, as evidenced by the overwhelming public pressure that recently killed two controversial copyright bills—the Stop Online Piracy Act and Protect IP Act. “It used to be that ordinary people didn’t think of copyright,” says Gloria Phares, a partner at Patterson Belknap Webb & Tyler. That has changed. Now, she says, “copyright legislation that tries to sweep too broadly is not going to make it.”