565 U.S. 302 (2012)
The Berne Convention for the Protection of Literary and Artistic Works took effect in 1886. It requires member states to protect works unless their copyright term has expired in the country of origin or the country where protection is claimed. The United States joined the Convention in 1989 but initially adopted a minimalist approach that left foreign works already in the U.S. public domain unprotected.1
In 1994, as part of implementing the Uruguay Round Agreements, Congress enacted Section 514 of the Uruguay Round Agreements Act. This restored copyright protection to preexisting works from Berne member countries that had entered the public domain in the United States because of lack of copyright relations at the time of publication, failure to comply with statutory formalities, or because they were sound recordings fixed before 1972. Section 514 grants restored works the remainder of the copyright term they would have received if they had been protected from the outset. It provides accommodations for reliance parties who had exploited the works before enactment, including a one-year grace period after notice and the right to continue using derivative works upon payment of reasonable compensation.
Petitioners are orchestra conductors, musicians, publishers, and others who had enjoyed free access to these works before restoration. They filed suit in the District of Colorado in 2001 asserting that Section 514 exceeded Congress's power under the Copyright Clause and violated the First Amendment. The district court granted summary judgment to the government.2 The Tenth Circuit affirmed the Copyright Clause ruling but remanded for further First Amendment review in light of Eldred v. Ashcroft.3 On remand, the district court granted summary judgment to petitioners on the First Amendment claim.4 The Tenth Circuit reversed, upholding the statute as narrowly tailored to an important government interest.5 The Supreme Court granted certiorari in 2011.6
Whether Section 514 of the Uruguay Round Agreements Act exceeds Congress's authority under the Copyright Clause?7
The Copyright Clause empowers Congress to promote the Progress of Science by securing for limited Times to Authors the exclusive Right to their Writings.8 The text contains no command that a time prescription once set becomes forever fixed or inalterable.9 Historical practice confirms that Congress may protect works previously in the public domain.10 The Clause permits measures that promote dissemination of existing works as well as creation of new ones.11
No. Section 514 grants restored works the remainder of the copyright term they would have received if protected from the outset, a term no less limited than those upheld in Eldred v. Ashcroft.12 The First Congress protected works previously in the public domain under state laws when it enacted the 1790 Copyright Act.13 Congress rationally concluded that full compliance with the Berne Convention would expand foreign markets for U.S. authors and invigorate protection against piracy abroad, thereby benefiting copyright-intensive industries and inducing greater investment in the creative process.14 Section 514 therefore falls comfortably within Congress's Copyright Clause authority.15
Section 514 does not exceed Congress's authority under the Copyright Clause.16
Related opinions on this issue
Joined by Justice Alito
Justice Breyer dissented on the ground that the Copyright Clause requires a quid pro quo of new creative production in exchange for monopoly privileges.17 Section 514 provides no incentive for new works and instead withdraws millions of existing foreign works from the public domain, raising prices and administrative costs that restrict dissemination without any countervailing benefit to the public.18 In his view, the utilitarian philosophy underlying the Clause, reflected in the Statute of Anne and the Founders' writings, does not authorize Congress to enact a statute that seriously restricts dissemination of existing material without eliciting new creation.19
Whether the First Amendment prohibits Congress from restoring copyright protection to works that had entered the public domain?20
The First Amendment does not require heightened scrutiny of copyright legislation that preserves the idea/expression dichotomy and the fair use defense, which serve as built-in accommodations for free expression.21 Copyright protection is an engine of free expression.22 Traditional contours of copyright law allow Congress to protect existing works without exceptional solicitude for material once in the public domain.23
No. Section 514 leaves the idea/expression distinction and fair use defense undisturbed.24 Congress included transitional accommodations for reliance parties who had exploited the works before enactment, including a one-year grace period after notice and the right to continue using derivative works upon payment of reasonable compensation. Nothing in the historical record or precedent warrants heightened First Amendment review simply because the works had previously entered the public domain.25 Section 514 places foreign works in the position they would have occupied had the current copyright regime been in effect when they were created and first published.26
The First Amendment does not prohibit Congress from restoring copyright protection to works that had entered the public domain.27
Related opinions on this issue
Joined by Justice Alito
Justice Breyer dissented on the ground that removing works from the public domain imposes significant speech-restricting harms, including higher prices, administrative costs that hinder use of orphan works, and reversal of settled expectations about free availability.28 These harms, combined with the absence of any incentive for new creation, require careful scrutiny under the First Amendment read together with the Copyright Clause.29 In his view, the statute's failure to employ less restrictive means available under the Berne Convention itself, such as compulsory licensing or reasonable royalties, renders the restoration unconstitutional.30