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Supreme Court Rules on Copyright Restoration for Foreign Works

BY Marcia Coyle
February 01, 2012

The U.S. Supreme Court has ruled that the Constitution did not bar Congress from extending copyright protection to previously free foreign works, such as Prokofiev's “Peter and the Wolf.” The justices, in a 6-2 decision by Justice Ruth Bader Ginsburg, rejected arguments made by a group of musicians, conductors, publishers and others, who enjoyed free access to certain foreign works before Congress acted in 1994. The group had argued that once those works entered the public domain, they remained there forever. “Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit,” wrote Ginsburg. See, Golan v. Holder, 10-545 (2012).

The case stemmed from congressional action to implement the Berne Convention for the Protection of Literary and Artistic Works, the principal agreement governing international copyright relations. The United States joined the convention in 1989 but did not comply fully with its terms. For example, although the convention instructed member countries to protect foreign works under copyright in the country of origin, the United States gave no protection to any work in the public domain in the United States.

Over time, other countries complained about the United States' approach and some balked at protecting U.S. works that held copyrights but were in the other countries' public domains unless the United States reciprocated. In 1994, Congress perfected implementation of the Berne Convention by giving works that held copyright protection in their country of origin the same term of protection available to U.S. works. Congress acted through '514 of the Uruguay Round Agreements Act.

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