By Matthew Hofmeister
On March 7, the U.S. Supreme Court granted certiorari in Golan v. Holder, (Docket No. 10-545), a case arising out of the Tenth Circuit that concerns whether Section 514 of the Uruguay Round Agreements Act (URAA) violates the First Amendment right to free speech. In 1989, the United States joined the Berne Convention for the Protection of Literary and Artistic Works, Section 18 of which requires inter alia that signatories restore copyright protection to works that are in the public domain in the signatory’s country but are still copyrighted in their country of origin. The United States implemented Section 18 five years later through URAA Section 514, thereby restoring copyright protection to works that are still protected in their country of origin but that are in the public domain in the United States (e.g. by failing to satisfy certain registration formalities). Users of such works must now pay a licensing fee following notice from the copyright owner.
Plaintiffs are an assortment of reliance parties—parties that had been using works which were in the public domain until enactment of Section 514—who contend that Section 514 violates their right to free speech. The parties agreed that Section 514 is a content-neutral regulation of speech that is therefore subject to an “intermediate scrutiny” standard of review. Such regulations must advance “important governmental interests unrelated to the suppression of free speech” and not “burden substantially more speech than necessary to further those interests.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997). Reviewing the case for the second time, the Tenth Circuit held that Section 514 satisfied this standard in light of the government’s important interest in obtaining compliance with the Berne Convention and ensuring that American authors’ works receive reciprocal protection in foreign countries, many of which had found the United States to be in contravention of Section 18 of the Berne Convention and were thus unwilling to provide American works Section 18 protection. URAA Section 514 did not burden substantially more speech than necessary in light of the presumption that the more protection the United States provided under Section 18, the more protection American works would accordingly receive abroad. The court also rejected an earlier claim by plaintiffs that Section 514 violated the Intellectual Property Clause, U.S. Const. art I, sec. 8, cl. 8, pursuant to the Supreme Court’s rejection of a similar claim in Eldred v. Ashcroft, 537 U.S. 186 (2003).
- Opinion Below (10th Cir.)
- Petition for Certiorari
- Petitioners’ Reply
- Amicus Brief on Behalf of Internet Archive
- Amicus Brief of the Conductors Guild
Matthew is a law student at the University of Denver Sturm College of Law, and is expecting to graduate this May. As a student, he is also President of the Intellectual Property Law Society, and Senior Articles Editor of the Sports & Entertainment Law Journal.