	Introduction

On October 5, 2011, the U.S. Supreme Court will hear oral argument in Golan v. Holde r, a case considering whether Congress had the power under the Copyright Clause of the U.S. Constitution to grant copyright protection to creative works that have already entered the public domain. In 1994, Congress enacted the Uruguay Round Agreements Act (URAA) of 1994; Section 514 of the URAA "restored" copyright protection to certain foreign works that had been in the U.S. public domain, in order to bring the United States into compliance with the Berne Convention for the Protection of Literary and Artistic Works of 1886, which the United States had joined in 1989. In 2001, a group of artists, performers, businesses, teachers, publishers, archivists, and movie distributors who had depended on artistic works in the public domain for their livelihoods, filed a lawsuit against the federal government challenging the constitutionality of the URAA. The U.S. Court of Appeals rejected these constitutional arguments in two separate rulings, holding that § 514 of the URAA was a valid exercise of Congress's power and that it did not violate the plaintiffs' free speech rights because the law is a content-neutral regulation of speech that was narrowly tailored to serve a substantial or important governmental interest—securing copyright protection for American works in foreign countries, as many of the United States' trading partners (who were signatories to the Berne Convention) had made clear that they would restore American copyrights that were in their public domain only if the United States restored foreign copyrights. Does the Copyright Clause of the United States Constitution prohibit Congress from taking works out of the public domain? Does Section 514 of the URAA violate the First Amendment of the United States Constitution? According to the former Register of Copyrights Marybeth Peters, the effect of § 514 of the URAA was to remove millions of foreign works from the public domain. Legal Analysis of Golan v. Holder

		Factual Background

Similar to the plaintiffs in Eldred, the plaintiffs in Golan v. Holder are orchestra conductors, educators, performers, publishers, film archivists, and motion picture distributors who rely on the free availability of artistic works in the public domain for their livelihoods. A decision in Golan v. Holder is expected by the end of the Supreme Court's October 2011 term.
Golan v. Holder is a case that will be heard by the U.S. Supreme Court on October 5, 2011. The Court will consider whether Congress has the power to grant copyright protection to creative works that have already entered the public domain. At issue in Golan is the Uruguay Round Agreements Act (URAA) of 1994 that Congress passed in order to bring the United States into compliance with international agreements on intellectual property (IP). Section 514 of the URAA "restored" copyrights in certain foreign works that were previously in the public domain in the United States. After these works became protected by copyright as a result of URAA, anyone wishing to use them needs to seek prior permission from the copyright holders and also likely pay licensing fees. Although it is difficult to determine the exact number of foreign works that the URAA removed from the public domain, the former Register of Copyrights estimated that it may be in the millions.
A group of orchestra conductors, educators, performers, film archivists, and motion picture distributors, who had relied on the free and unrestricted availability of these artistic works in the public domain for their livelihoods, filed a lawsuit against the federal government challenging the constitutionality of the URAA. The U.S. Court of Appeals for the Tenth Circuit determined that § 514 of the URAA was within Congress's power under the Copyright Clause and that it did not violate the free speech and expression rights of the plaintiffs who had enjoyed freely using the foreign works that were in the U.S. public domain before the restoration of their copyright protection.
The Supreme Court's anticipated ruling in Golan v. Holder is expected to provide definitive answers to the following significant questions in copyright law: whether Congress is prohibited by the Copyright Clause from taking works out of the public domain, and whether § 514 of the URAA violates the First Amendment to the U.S. Constitution.