Supreme Court Upholds Restoration Of U.S. Copyright Protection For Foreign Works In The Public Domain

If you confront the question whether a foreign book, movie, song, artistic work, or other work of authorship is still in copyright in the U.S. or whether such a foreign work is being infringed in the United States, take note of a major new Supreme Court decision, Golan v. Holder.1

In Golan, the Court upheld a 1994 statute "restoring" the copyright in certain foreign works that hadn't previously been protected in this country. The statute, the Uruguay Round Agreements Act (URAA)2, shifted three categories of works out of the public domain and into U.S. copyright: (1) works from countries that lacked copyright reciprocity with the United States when first published, (2) works where the foreign author had failed to observe "formalities" previously required in the United States, such as affixing a copyright notice, and (3) foreign sound recordings made before U.S. copyright law began protecting them in 1972.3

The URAA restored works only if they were still in copyright in their home countries on the effective date of U.S. restoration, January 1, 1996. Moreover, the works were restored only for the remainder of the period the works would have enjoyed in the United States had they never been in the public domain here. (In most cases, that period runs until 95 years after the work was first published.) The works were not given additional time to compensate for the time they were not protected by copyright. The statute also offered several accommodations to ease the transition for "reliance parties," i.e., those who had exploited the works while they were in the public domain. Those accommodations included a grace period before restoration took effect, the privilege to continue freely exploiting a restored work until receiving constructive or actual notice from the restored copyright owner (and for a limited period after notice), and, subject to payment of a "reasonable royalty," a privilege to continue exploiting derivative works based on restored works.

Why would Congress want to take works out of the public domain? The short answer is treaty obligations. In fact, Congress was obligated to implement restoration upon joining the Berne Convention in 1989. But at that time Congress made only the minimal changes necessary to meet Berne's eligibility requirements—no formalities as conditions to copyright protection and a term of copyright that extended at least 50 years after the death of the author. It failed to implement the requirement in Article...