For, By and Of the People

In Golan v Gonzales[1] Judge Henry ruled that, a provision in the Uruguay Round Agreements Act (“URAA”)[2] that allows for material in the public domain to regain copyright protection, would have to meet either a strict or intermediate scrutiny, at remand. The Tenth Circuit considered the URAA provision as going beyond the traditional contours of the Copyright Clause and consequently being a serious impediment in free exercise of expression. It remanded the case to the District Court for a scrutiny subject to the First Amendment interest.

The plaintiff’s first argument was that by increasing the term for protection from 50 years plus life to 70 years plus life, the Copyright Term Extension Act (“CTEA”) violated the “limited Times” protection in the Copyright Clause of the Constitution. The Ninth Circuit in Kahle v Gonzales[3], recently rejected a similar argument stating that it was within the scope of Congress’s power to rationally determine the amount of time required to benefit authors and keep the “engine of free expression” alive[4]. The Tenth Circuit agreed with the holding of Kahle and disagreed that such extension implied the term of protection was “effectively perpetual”.

On another issue of First Amendment and the Copyright Clause, the Court determined that the Copyright Clause would be subject to First Amendment review only if the “traditional contours of copyright” had been altered. Explaining that a limited copyright protection attaches to a work at the time of inception, the Tenth Circuit found that URAA had exceeded such a traditional contour of copyright law by not following the sequence of creation, copyright and duration. The URAA effectively altered the ordinary sequence by copyrighting works which had fallen into public domain.

Quoting Ward v Rock Against Racism where it was stated that the "right to artistic expression is close to the core of First Amendment", the Tenth Circuit concluded a First Amendment interest exists in works in the public domain. It's reasoning was simple - others are protected in using the publicly available works to make their own independent creations. Thus, works in the public domain belong in the public domain and to allow otherwise, would require a First Amendment scrutiny.

Finding the idea/expression dichotomy and fair use to be inadequate armory for defending against the threat to free expression, the Court found that removal of works from the public domain was a dangerous proposition. Fair use, did not provide a “breathing space” for free expression, but instead §514 of the URAA effectively infringed upon the users First Amendment rights. The “built in free speech safeguards”[5] presumes that an authors rights extinguishes after the work enters the public domain. Such protection is inadequate in protecting First Amendment interests against URAA §514 as the URAA provided only a safe harbor by allowing use for a year after restoration, it did not contain the supplemental First Amendment protection.

The District Court must now determine whether §514 of the URAA altered the traditional contours of copyright protection affecting the plaintiff’s right to free expression.
----------------------------------------------------------------
[1] http://www.ca10.uscourts.gov/opinions/05/05-1259.pdf
[2] Pub. L. No. 103-465, 108 Stat. 4809, 4976-80 (1994), codified at 17 U.S.C. §§104A, 109
[3]http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1FABEA163F4C714A8825726B005A12F0/$file/0417434.pdf?openelement
[4] Harper & Row Publishers Inc.v. Nation Enters., 471 U.S. 539, 558 (1985)
[5] See Eldred v Ashcroft, 537 U.S. 186 (2003)