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Ken Turchi
IU Maurer School of Law

Last modified: Wednesday, October 5, 2011

Supreme Court likely to uphold restoration of copyright to works in public domain: IU legal expert

Oct. 5, 2011

BLOOMINGTON, Ind. --Today the U.S. Supreme Court heard oral argument in Golan v. Holder, a case that tests Congress' power to confer copyright on works that are in the public domain in order to protect authors and composers worldwide under international treaties. According to an expert in international copyright at the Indiana University Maurer School of Law, the court is likely to uphold the constitutionality of the law restoring copyright protection.

Marshall Leaffer

Marshall Leaffer

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"In Golan the petitioners argue that Section 514 of the Uruguay Round Agreements Act, which restores copyright to foreign works that were in the public domain, violates the U.S. Constitution because Congress can confer copyright protection only for 'limited times,'" said Marshall Leaffer, Distinguished Scholar in Intellectual Property Law and University Fellow. "The petitioners also claim that Section 514 violates the First Amendment rights of those who use public domain works."

Despite the petitioners' claims, Leaffer believes that the Supreme Court will uphold the constitutionality of the restoration provisions of Section 514, for the same reasons given in Eldred v. Ashcroft, a 2003 case that found term-extension provisions of the Copyright Act constitutional. "The court will find that the restoration provisions are a rational and reasonable exercise of congressional power and it will not second-guess Congress in its desire to comply with Article 18 of the Berne Convention, which requires certain member countries to confer restoration to foreign works," Leaffer said.

Leaffer also believes that the court will reject the First Amendment claim just as it did in Eldred, in which the Court held that copyright does not deprive anyone from using the ideas in a work as opposed to the expressive aspects of the work, and that the defense of fair use lessens First Amendment concerns.

The case involves 1994 legislation in which Congress approved treaties aimed at strengthening international copyright protections. The act restored protection that had lapsed for foreign works, including well-known orchestral compositions. Orchestra conductors, educators, librarians, Internet search companies and others who rely on works in the public domain have challenged the law. Composers, authors, songwriters, photographers and others who depend on copyright protection have supported it.

"I sympathize with orchestra conductors, educators, performers, film archivists, and motion picture producers who are no longer able to avail themselves of many foreign works that were once in the public domain," Leaffer said.

Leaffer is available to comment on Golan and other copyright-related matters. He can be reached at 812-856-4489 or at