Monday, June 21, 2010

10th Cir.: Restoring copyright protection to public domain works does not violate First Amendment

The Tenth Circuit today ruled that Congress did not violate the First Amendment by restoring copyright protection for certain works that had fallen into the public domain, reversing a district court's ruling that Section 412 of the Uruguay Round Agreements Act of 1994 was unconstitutional. Wrote Chief Judge Mary Beck Briscoe for the unanimous three-judge panel in Golan v. Holder:
The government argues on appeal that Section 514 is narrowly tailored to advancing three important governmental interests: (1) attaining indisputable compliance with international treaties and multilateral agreements, (2) obtaining legal protections for American copyright holders’ interests abroad, and (3) remedying past inequities of foreign authors who lost or never obtained copyrights in the United States. We hold that the government has demonstrated a substantial interest in protecting American copyright holders’ interests abroad, and Section 514 is narrowly tailored to advance that interest. Consequently, the district court erred in concluding that Section 514 violates plaintiffs’ First Amendment rights.
(footnote omitted). The government had defended the statute at issue largely on the ground that it was necessary in order to comply with TRIPS and the Berne Convention, under which signatories "must provide copyright protection to preexisting foreign works even when those works were previously in the public domain in that country."

This is a big win for the government, and for the large group of copyright owners who filed amicus briefs urging reversal. The plaintiffs can seek rehearing en banc, and may petition for cert., but I think any First Amendment challenge to a copyright statute is a real longshot in light of Eldred v. Ashcroft.

1 comment:

  1. "I think any First Amendment challenge to a copyright statute is a real longshot in light of Eldred v. Ashcroft."

    Concur. Hence, were I a betting man I would not bet on cert. being almost a "given".

    Having read some comments and "rants" on other sites near and dear to your heart, I do have to wonder if those making such comments and rants truly understand the specific types of works to which restoration in the US applies, as well as the impact of such restoration on the rights of US authors in foreign countrie.?

    While I have not given the matter any great thought, it is interesting that so many perceive "public domain" as a bedrock principle that can never be touched by Congress. In a very broad sense I have never viewed the "public domain" as an immutable right, but as a consequence of the expiry copyright.

    All in all, a very interesting "clash" of views raising issues that I daresay most uninitiated in copyright law take for granted. In a more crude manner of expression, conventional wisdom in my experience is rarely conventional.


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