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Shrinking the Public Domain: The Supreme Court Revisits Copyright Law

Update: On January 18, 2012, by a vote of 6-2, the Supreme Court upheld section 514 of the Uruguay Round Agreements Act, which removed millions of foreign works from the public domain. Justice Ruth Bader Ginsburg, writing for the majority, found no First Amendment problem with the law. Justices Stephen Breyer and Samuel Alito dissented. Click here for a copy of the Supreme Court decision.

(October 24, 2011) – In 2003, the Supreme Court upheld a law that extended the already hefty term of copyright protection for 20 more years, thereby giving the owners of copyrighted works a total of 95 years of monopoly control if the copyright is owned by a corporation, and the life of the author plus 70 years if the copyright is owned by an individual. Justice Ruth Bader Ginsburg, writing for the Court in the case of Eldred v. Ashcroft, rejected arguments that such long copyright terms violate the “limited times” provision of the Constitution's Copyright Clause, which requires that after a certain period, creative works must enter the public domain and be freely available for copying, performance, and distribution.

On October 5, 2011, the Justice Department asked the Supreme Court to extend its ruling in Eldred by approving a law that removes works already in the public domain and puts them into copyright. The case, Golan v. Holder, involves section 514 of the Uruguay Round Agreements Act of 1994, which bestowed copyright protection on many thousands of public domain works—probably millions, according to the U.S. Register of Copyright1—that were freely available in the U.S., in many cases for decades. The reason for section 514 was Congress’s desire to gain copyright protection for U.S. works in some countries, such as Russia, that were not affording it because works from those countries were in the public domain under U.S. law. Congress was lobbied heavily by entertainment and media companies that hoped these foreign countries would return the favor.

The plaintiffs challenging section 514 include orchestra conductors, educators, performers, film archivists, and movie distributors who relied for years on the free availability of foreign works by such composers as Prokofiev, Shostakovich, and Stravinsky. Section 514 now forbids them from performing these works publicly without permission.

It was difficult to predict the outcome of the case from the Supreme Court oral argument on October 5. The justices gave a hard time to both Anthony Falzone of the Stanford Center for Internet and Society, arguing for the plaintiffs, and Solicitor General Donald Verrilli, arguing for the government.

Justice Ginsburg interrupted Falzone almost immediately after he began his argument, asserting that “all Congress is doing is giving Shostakovich works the same [protection] as Aaron Copland,” and asking “why does that violate the limited-time prescription?” Falzone said that if Congress can just pull works out of the public domain, then “there's nothing stopping us from reaching back and giving De Tocqueville a hundred years.” But Ginsburg, otherwise a strong supporter of free expression, did not seem persuaded. Chief Justice Roberts and Justice Kennedy also pushed Falzone on why he thought it was logical to allow long extensions of copyright but not to allow any copyright at all for works that have never had protection.

Justice Sotomayor was also tough on the plaintiffs' case. “These foreign works were never given the opportunity to be copyrighted,” she said. “Isn't that a substantial difference from the hypothetical that you're trying to proffer?”—that is, a case where someone “had a copyright, it expired, and now Congress wants to revive it.” Falzone insisted that conceptually, it was the same: Congress had always previously respected the importance of the public domain.

Justice Scalia pulled Falzone out of this morass of unfriendly questions by asking him to “spend a little bit of time on your other argument … that the problem here is that this law does not promote the ‘progress of science and useful arts’”—the stated purpose of the Constitution’s Copyright Clause. Falzone readily agreed: a law that “does nothing but take old works out of the public domain … cannot stimulate the creation of anything. And as for things that already exist, it cannot stimulate the spread of them. All it can do is restrict the spread of things that could once circulate freely.”

Solicitor General Verrilli also had some rough sledding. He began his argument by asserting that section 514 merely remedied a problem of foreign relations: “we did not have treaties with these individual countries”; hence, there was no U.S. copyright protection for many foreign works. Under the Berne Convention, which the U.S. joined in 1989, countries agreed to give foreign copyright holders the same protection as their own residents. Scalia was unpersuaded: “I do not find that an appealing argument. It seems to me Congress either had the power to do this under the Copyright Clause or it didn't. I don't think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President, and Zimbabwe.”

Justice Breyer, who had dissented in Eldred, also was not sympathetic to the government’s argument. He noted that several dozen friend of the court briefs had been filed in the case, some of them arguing that the government could comply with Berne “in other ways that are less restrictive” than pulling millions of works out of the public domain. Besides, “here we have a law which says that libraries, music lovers, book buyers will either pay more money for things already in existence or will simply be unable to get them.” “Orphan works,” in particular—that is, works whose copyright owners are unknown—would go out of circulation.

Chief Justice Roberts told Verrilli: “there's something at least at an intuitive level appealing about Mr. Falzone's First Amendment argument. … One day I can perform Shostakovich; Congress does something, the next day I can't.” And “what about Jimi Hendrix? He has a distinctive rendition of the national anthem, and assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?”

Verrilli replied that the Copyright Clause by definition allows Congress to restrict free expression by creating monopolies over creative works. Besides, he said, citing Eldred, “the Copyright Clause already contains very significant accommodations of First Amendment interests,” including fair use.2 “Maybe Jimi Hendrix could claim fair use in that situation.”

But certainly, Justice Kennedy said, “the First Amendment is implicated” in section 514’s removal of works from the public domain. Roberts agreed that even using very minimal First Amendment scrutiny, “it seems to me that you run into Justice Breyer's concern that the government interest is vanishingly small when it comes to promoting progress under the Copyright Clause,” and the interest on the other side, “the restriction of free speech rights,” is significant.

In the few minutes Falzone saved for rebuttal, he capitalized on these encouraging noises from a few of the justices. “The burden on speech that this statute imposes is remarkable,” he said. There is “a huge amount of original expression bound up” in performing theater and music. “But even if you put performances aside, this Court has recognized in case after case that there is a critical speech interest in publishing the work of another author [or] in showing a film created by another.” With section 514, Congress “took speech rights of 250 million Americans and turned them into the private property of foreign authors, all on the bare possibility that might put more money in the pocket of some U.S. authors.”

Golan v. Holder should be decided sometime in the next six months. Whatever the result, it can be predicted with reasonable safety is that the decision will not be unanimous.


1. Marybeth Peters, quoted in petitioners’ brief, Golan v. Holder, 10.

2. See "The Progress of Science and Useful Arts”: Why Copyright Today Threatens Intellectual Freedom and Will Fair Use Survive? Free Expression in the Age of Copyright Control, for an overview of fair use and other free-expression safety valves.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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