Supreme Court Restores Copyright Protection to Foreign Works

It’s a story you’d expect to find on the big screen: university music professor uses works in the public domain for the performance repertoire of his orchestra. Congress restores US copyright protection to foreign works in compliance with international treaties. Professor challenges Congressional authority to change copyright laws and takes the case all the way to the Supreme Court to reclaim for orchestras and educators the rights to perform music formerly free to all. 

But the Hollywood story would likely have a different ending. In the real story, Golan v. Holder, the justices agreed with the lawmakers, ruling that Congress has the right to restore copyright protection to works previously available for free. 

“For the average person this decision won’t have direct implications, although indirect effects may start to appear. Perhaps that book of French poetry you thought you once found online won’t be available the next time you check. Maybe the concert tickets for your local symphony orchestra will be just a bit more expensive next season, or maybe they won’t be putting on that evening of great works by Russian masters after all…” (Millions of Foreign Works No Longer in the Public Domain: The Supreme Court Upholds 1994 Copyright Law by Foley Hoag LLP - Trademark, Copyright & Unfair Competition)

For your reference, here’s a look at the Supreme Court decision, as told by lawyers and law firms on JD Supra:

Restoration of Copyright in Foreign Works Passes Constitutional Muster (McDermott Will & Emery) 

“The Berne Convention, enacted in 1886, is the major treaty governing international copyright protection. Berne requires member countries to accord foreign works the same copyright protection as works created by its nationals. The United States joined Berne in 1989, but did not protect foreign works as Berne required. As a result, some foreign works never received copyright protection in the United States.” Read more»

Curtain Call: Supremes Bow to Congressional Authority on Copyright Terms (Bracewell & Giuliani LLP)

“By enacting Section 514 [of the Uruguay Round Agreements Act], Congress brought the United States into compliance with the dominant international copyright scheme under the Berne Convention but, in so doing, removed a bulk of works by foreign authors from the public domain (e.g., certain symphonies by Shostakovich, books by Virginia Woolf, or artwork by Pablo Picasso). More specifically, compliance with the Berne Convention required that the United States recognize copyrights in certain foreign works, at least to the same degree as applicable to domestic works.” Read more»

IP/Entertainment Law Weekly Case Update for Motion Picture Studios and Television Networks (Loeb & Loeb LLP)

“According to the Court … nothing in the historical record, subsequent congressional practice, or its own jurisprudence warranted exceptional First Amendment protection for copyrighted works once in the public domain. Nor was this a case where Congress was attempting to regulate based on content. The Court also noted §514 that did not impose a blanket prohibition on public access, but rather required would-be users of certain foreign works to pay for their desired use, or limit their exploitation to ‘fair use.’” Read more»

Supreme Court Upholds Restoration of U.S. Copyright Protection for Foreign Works in the Public Domain (Patterson Belknap Webb & Tyler LLP)

“The Golan decision leaves in place an intricate statutory scheme governing restored works. Dealing with restored works means navigating the many definitions, rules, and exceptions in the law, not to mention the implementing regulations issued by the Copyright Office. For instance, merely to qualify as a ‘restored work,’ a work of authorship not only must have originated in a ‘source country’ that qualifies as an ‘eligible country’, but the work must also not have been published in the United States within 30 days following its publication in the source country.” Read more»

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