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Wednesday, January 18, 2012

Supreme Court Says Congress May Re-Copyright Public Domain Works

Just when you thought you might have a glimmer of an understanding of copyright law, the U.S. Supreme Court on January 18, 2012 decided the case of GOLAN ET AL. v. HOLDER, ATTORNEY GENERAL, ET AL. If you would like to read the case, you can find a copy at

According to the Slip opinion, the Court states:
The Berne Convention for the Protection of Literary and Artistic Works(Berne), which took effect in 1886, is the principal accord governing international copyright relations. Berne’s 164 member states agree to provide a minimum level of copyright protection and to treat authors from other member countries as well as they treat their own. Of central importance in this case, Article 18 of Berne requires countries to protect the works of other member states unless the works’copyright term has expired in either the country where protection is claimed or the country of origin. A different system of transnational copyright protection long prevailed in this country. Throughout most of the 20th century, the only foreign authors eligible for Copyright Act protection were those whose countries granted reciprocal rights to American authors and whose works were printed in the United States. Despite Article 18, when the United States joined Berne in1989, it did not protect any foreign works lodged in the U. S. public domain, many of them works never protected here. In 1994, however, the Agreement on Trade-Related Aspects of Intellectual Property Rights mandated implementation of Berne’s first 21 articles, on pain of enforcement by the World Trade Organization. In response, Congress applied the term of protection available to
U. S. works to preexisting works from Berne member countries. Section 514 of the Uruguay Round Agreements Act (URAA) grants copyright protection to works protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound recordings fixed before 1972; or the author had not complied with certain U. S. statutory formalities. Works encompassed by §514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. As a consequence of the barriers to U. S. copyright protection prior to §514’s enactment, foreign works “restored” to protection by the measure had entered the public domain in this country. To cushion the impact of their placement in protected status, §514 provides ameliorating accommodations for parties who had exploited affected works before the URAA was enacted.
Petitioners are orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works §514 removed from the public domain. They maintain that Congress, in passing §514, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations. The District Court granted the Attorney General’s motion for summary judgment. Affirming in part, the Tenth Circuit agreed that Congress had not offended the Copyright Clause, but concluded that §514 required further First Amendment inspection in light of Eldred v. Ashcroft, 537 U. S. 186. On remand, the District Court granted summary judgment to petitioners on the First Amendment claim, holding that §514’s constriction of the public domain was not justified by any of the asserted federal interests. The Tenth Circuit reversed, ruling that §514 was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. (emphasis added)
 What does this mean in English? It means that to determine whether or not a work is in the public domain, you will have to look to the copyright protection of the work in the country of origin. Many works now in the public domain in the U.S. will actually be protected by copyright. This makes the task of determining what is and what is not protected by copyright even more difficult. Especially, if you are not aware of the country of origin of the work. As noted above, there are 164 member countries. In my opinion, on its face, this ruling cannot apply to works created in the U.S. It will not resurrect out of copyright works originating in the U.S.

How does it affect genealogists? The digital reproduction of any work of foreign origin from one of the 164 Berne Convention signers, will have to be evaluated in terms of the copyright restrictions of the country of origin. There are likely other far reaching unanticipated consequences.

For further information see Circular 38B of the U.S. Copyright Office, Highlights of the Copyright Amendments contained in the URAA.

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