The power of Congress to change American copyright law has recently come under scrutiny in the federal courts. Companies owning copyrighted materials should note that the United States Court of Appeals for the Tenth Circuit’s decision in Golan v. Gonzalez, 2007 WL 2547974 (10th Cir. 2007), reaffirmed the authority of Congress to extend the lifespan of copyright protection. In addition, businesses or individuals making use of works currently in the public domain should be aware that the Golan decision calls into question an attempt by Congress to extend copyright protection to foreign works previously in the public domain. .
Several artists, performers, and educators challenged two acts of Congress – the Copyright Term Extension Act (“CTEA”) and section 514 of the Uruguay Round Agreements Act (“URAA”). Both of these acts changed American copyright law. Under the CTEA, Congress extended the duration of existing and future copyrights from life-plus-50-years to life-plus-70-years. Section 514 of the URAA implemented Article 18 of the Berne Convention for the Protection of Literary and Artistic Works, which requires member countries to afford the same copyright protection to foreign authors as they provide to their own authors. In particular, complying with Article 18 would require the copyrighting of some foreign works that are currently in the public domain.
The court rejected the plaintiffs’ challenge to the CTEA. Under the Copyright Clause of the Constitution, Congress may “promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their Writings.” In Eldred v. Ashcroft, 537 U.S. 186 (2003), the Supreme Court upheld the CTEA, holding that Congress had acted within its authority by changing the copyright duration. Eldred did not directly address the validity of the life-plus-70-years timespan, and the plaintiffs contended that this timespan violated the “limited Times” prescription in the Copyright Clause because the Framers of the Constitution would have viewed such a timespan as “effectively perpetual.” The court concluded that the duration of copyrights was left up to Congress and could not be challenged in court.
With respect to the URAA, the court reached a different conclusion. The Court did acknowledge that Congress had the power to change American copyright law as long as it acted rationally, concluding that it was rational to comply with the Berne Convention, which secured copyright protection for American works in other countries. But by copyrighting works that were previously in the public domain, section 514 did implicate the First Amendment. Unlike the CTEA, which only extended the protection given to already-copyright works or new works, section 514 would alter the traditional contours of copyright protection by copyrighting works that were previously in the public domain. The court focused on what it described as the “copyright sequence.” According to the court, “until § 514, every statutory scheme preserved the same sequence. A work progressed from 1) creation; 2) to copyright; 3) to the public domain.” Section 514, however, changed this because “the copyright sequence no longer necessarily ends with the public domain; indeed, it may begin there.” This alteration of the copyright sequence, combined with the bedrock principle that no one may copyright a work in the public domain, raises significant First Amendment issues.
The court noted that the First Amendment protects the rights of the plaintiffs and the public “to unrestrained artistic use” of works in the public domain. By removing works from the public domain, section 514 interferes with those rights. The court stated that “by withdrawing works from the public domain, § 514 leaves scholars, artists, and the public with less access to works than they had before the Act.” The court remanded the case to the district court with instructions to analyze section 514 under traditional First Amendment principles, including making a determination regarding whether the restrictions on free expression embodied in section 514 were content-based or content-neutral.
Full Opinion
Text: http://www.ca10.uscourts.gov/opinions/05/05-1259.pdf