10th Cir: Golan v Holder - First Amendment Challenge to Berne Convention's Taking Works Out of Public Domain Retroactively Fails

The 10th Circuit ruled yesterday against a group of distributors of foreign copyrighted works that had fallen into the public domain, but which Congress had restored copyright status by 1994 legislation implementing the Berne Convention, following the Uruguay Round of trade negotiations.

The group, represented in part by Prof. Lawrence Lessig and the Center for Internet and Society, included a man who had composed a marching band song based on a Shostakovitch symphony that had fallen into the public domain.

The situation arose because the US used to have a rule that if you didn't put a copyright notice on your work and register it with the US copyright office, it would fall into the public domain.   Many distributors of foreign copyrighted works failed to put proper notices on them or register them with the copyright office.  Notices and registration are known as "formalities".   For a while, the US was a rare country that required formalities, most didn't, pursuant to the Berne Convention.   The US enacted the Berne Convention Implementation Act in 1988 abolishing the requirement of formalities, but it did not restore copyright protection to foreign works that had fallen out of copyright.  In 1994, Congress restored copyright protection to these foreign works (it was not automatic and involved some bureaucracy).  People who'd used the works or created derivative works were supposed to work out reasonable license fees or have them fixed by the courts.

You can find the requirement of formalities in the Copyright Act of 1909.  I have included the entire 1909 Copyright Act for easy reference as an appendix to my Copyright Litigation Handbook.

The decision has a lot of interesting legislative history, and it's got a lot of litigation history.  (From my memory) it was in district court where plaintiff lost, there was an appeal that plaintiff won with instruction to perform a First Amendment analysis on remand, then plaintiff won again with the district judge holding that the statute violated the First Amendment.  Now, the 10th Circuit reverses, link to decision below:

10th Cir: Golan v Holder - First Amendment Challenge To Removal of Copyrighted Works From Public Domain Fails



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