Taking on what will be a key copyright case, Golan v. Hoder, the U.S. Supreme Court will answer the question: Can Congress restore foreign works previously in the public domain?

In Golan, orchestra conductors, educators, performers, publishers, film archivists and motion picture distributors who have relied on the public domain for a living, assert that Section 514 of the Uruguay Round Agreements Act (URAA) (1) exceeds Congress’ authority under the copyright clause of the Constitution,  Article 1 § 8 cl. 8, and (2) violates the First Amendment.

Section 514 of URAA has restored copyright protection for foreign works that were in the public domain, prohibiting plaintiffs from continuing to use them, or requiring licensing fees for continued use that are often too expensive for plaintiffs.  They claim that the U.S. government has deprived them of the free expression they would have had in what were public domain works.

Congress enacted section 514 of URAA to comply with trade agreements in the  Uruguay Trade General Agreement on Tariffs and Trade in 1994.  The agreements required the U.S. to comply with Article 18 of the Berne convention, subsequently reflected in section 514 of URAA. It provides for restoration of “copyrights in foreign works that were formerly in the public domain in the United States for one of three specified reasons: failure to comply with formalities, lack of subject matter protection, or lack of national eligibility.” Although the legislation does not cover foreign works that have fallen into the public domain due to expiration of term, 50,000 or so foreign works already have been revived by section 514.

A few weeks ago, we discussed the Missouri district court decision, which restored copyrights to Wizard of Oz characters previously in the public domain.  That case and Golan demonstrate the great need for clarification as to the legality of reviving works once “free and clear” and what is the public domain.  The Supreme Court appears ready to take on at least part of the task,  with an eagerly awaited decision expected in October.