The following excerpt is from an article originally published in the ABA Landslide publication. The article’s author, Eric Schwartz, is a partner with Mitchell Silberberg & Knupp LLP, members of the Copyright Alliance Legal Advisory Board.
On January 18, 2012, the U.S. Supreme Court upheld the constitutionality of a 1994 amendment to the U.S. Copyright Act in Golan v. Holder. That amendment, section 514 of the Uruguay Round Agreements Act (URAA), “restored” protection to certain qualified foreign works and sound recordings that were in the public domain in the United States. Section 514 was thus upheld, 16 years after it had entered into force (January 1, 1996), following a decade of challenges in the courts – yielding numerous district court and appellate decisions. The 6-2 majority decision in Golan, affirming the Tenth Circuit’s 2010 decision, was written by Justice Ginsburg; the dissent was written by Justice Breyer (joined by Justice Alito).
Golan is, in many ways, a companion case to Eldred v. Ashcroft, a 2003 decision that upheld the constitutionality of a copyright term extension (the “plus 20-year” duration amendments of 1998). Like Golan, the Eldred (7-2) majority opinion was also written by Justice Ginsberg, with a dissent by Justice Breyer (Eldred also had a separate dissent by then-Justice Stevens). Both cases were challenges to the limits of Congress’s authority under the Copyright Clause in Article I of the U.S. Constitution. Both reviewed, and upheld, the Copyright Clause and First Amendment constitutionality of the copyright amendments in question (1998–Eldred; 1994–Golan), finding neither had altered the “traditional contours” of copyright, a term coined by Justice Ginsburg and first introduced in Eldred. Among other things, Golan further elaborated on what Justice Ginsburg meant by “traditional contours” in Eldred (correcting the “reading” of the Tenth Circuit). Taken together, the cases clarify the importance of “traditional contours” as a measuring stick for future challenges to congressional revision of copyright law.
There are several broad observations that can be made regarding the tandem cases, well beyond the particulars of restoring foreign works (Golan) or extending term for existing works (Eldred), summarized by three interrelated points. First is the great deference the court gives to Article I, on the authority of Congress to enact copyright laws (the Copyright Clause) whether the action of Congress is “wise or not” and without “second-guess[ing] the political choice Congress made” and, especially, as in Golan, when Congress (and the executive branch) concur on changes necessary for acceding to and implementing international treaties. Second is an affirmation of the treatment of (i.e. , the relationship between) copyright and the First Amendment. Last is the application of a rational basis test to undertake such a review. In Golan, the court found section 514 constitutional under the Copyright Clause and First Amendment without the need for a “heightened review.”
In the wake of these two cases, the scope of future Copyright Clause and/or First Amendment challenges to new copyright amendments is narrow. It is likely such challenges will succeed only if and when, in the future, Congress chooses to alter the “traditional contours,” which are now understood to include only the idea/expression dichotomy and the fair use defense (copyright law’s so-called “built-in First Amendment accommodations”), or if Congress acts absent any “rational” government interest of congressional purpose in enacting a revision.
To continue reading, the full text of the article can be found here. Reprinted with permission.