Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (“Article 18”), which the United States joined in 1989, requires that signatory nations provide copyright protection to certain foreign works. In 1994, Congress implemented Article 18 by enacting Section 514 of the Uruguay Round Agreements Act (“Section 514”), which restores copyright protection to certain foreign works that were previously in the public domain. On March 7, 2011, the Supreme Court granted certiorari in Golan v. Holder, No. 10-545, to decide whether Section 514 violates the U.S. Constitution’s Copyright Clause or First Amendment. The case is important both to businesses whose works received renewed protection under Section 514 and to businesses that wish to make use of such works.

Petitioners are orchestra conductors, educators, performers, publishers, film archivists, and motion-picture distributors who record, manufacture, and distribute foreign works in the public domain. Under Section 514, certain foreign works are now copyright-protected, and petitioners thus are prohibited from using those works unless they pay a licensing fee. 

Petitioners challenged the constitutionality of Section 514 in district court, which granted summary judgment in favor of the government on both petitioners’ Copyright Clause claim and their First Amendment claim. The Tenth Circuit affirmed the dismissal of the Copyright Clause claim, holding that Section 514 did not grant “perpetual monopolies” and that Congress’s decision to comply with the Berne Convention was not “so irrational or so unrelated to the aims of the Copyright Clause that it exceeds the reach of congressional power.” 501 F.3d 1179, 1186–87. The Tenth Circuit reversed the dismissal of the First Amendment claim, however, holding that Section 514 infringed petitioners’ “vested First Amendment interests” by departing from the traditional principle that “works in the Public Domain remain there.” Id. at 1192, 1194. The Tenth Circuit remanded for a First Amendment analysis under the proper level of scrutiny.

On remand, after the parties agreed that Section 514 is content-neutral and therefore subject to intermediate scrutiny, the district court held that Section 514 violates the First Amendment. The Tenth Circuit reversed, holding that Section 514 is narrowly tailored to advance the important governmental interest in protecting American copyright protections abroad.

Absent extensions, amicus briefs in support of the petitioners will be due on April 28, 2011, and amicus briefs in support of the respondents will be due on May 31, 2011. Any questions about this case should be directed to Dan Himmelfarb (+1 202 263 3035) in our Washington, DC office.

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