Does Congress have the power to “restore” copyright protection to public-domain works? The U.S. Supreme Court will shortly consider the question in Golan v. Holder, the first case since Eldred v. Ashcroft to address the constitutional limits on Congress’ power to expand copyright protection.
At issue is § 514 of the Uruguay Round Agreements Act, which granted copyright protection to certain works by foreign authors that, for a variety of reasons, had entered the public domain. As a result, public-domain works potentially numbering in the millions — including Prokofiev’s Peter and the Wolf, literature by Maxim Gorky, paintings by Picasso and music by Stravinsky, for example — were newly eligible for copyright protection. If the copyright owner decides to enforce its rights, those using or planning to use the works must either pay hefty license fees or cease use of the works. The law includes some protections for existing users, such as providing immunity for prerestoration uses and a one-year grace period.
