Golan v. Holder , 132 S. Ct. 873 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GOLAN ET AL. v. HOLDER, ATTORNEY GENERAL,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 10–545. Argued October 5, 2011—Decided January 18, 2012
The Berne Convention for the Protection of Literary and Artistic Works
(Berne), which took effect in 1886, is the principal accord governing
international copyright relations. Berne’s 164 member states agree
to provide a minimum level of copyright protection and to treat au-
thors from other member countries as well as they treat their own.
Of central importance in this case, Article 18 of Berne requires coun-
tries to protect the works of other member states unless the works’
copyright term has expired in either the country where protection is
claimed or the country of origin. A different system of transnational
copyright protection long prevailed in this country. Throughout most
of the 20th century, the only foreign authors eligible for Copyright
Act protection were those whose countries granted reciprocal rights
to American authors and whose works were printed in the United
States. Despite Article 18, when the United States joined Berne in
1989, it did not protect any foreign works lodged in the U. S. public
domain, many of them works never protected here. In 1994, howev-
er, the Agreement on Trade-Related Aspects of Intellectual Property
Rights mandated implementation of Berne’s first 21 articles, on pain
of enforcement by the World Trade Organization.
In response, Congress applied the term of protection available to
U. S. works to preexisting works from Berne member countries. Sec-
tion 514 of the Uruguay Round Agreements Act (URAA) grants copy-
right protection to works protected in their country of origin, but
lacking protection in the United States for any of three reasons: The
United States did not protect works from the country of origin at the
time of publication; the United States did not protect sound record-
ings fixed before 1972; or the author had not complied with certain
2 GOLAN v. HOLDER
Syllabus
U. S. statutory formalities. Works encompassed by §514 are granted
the protection they would have enjoyed had the United States main-
tained copyright relations with the author’s country or removed for-
malities incompatible with Berne. As a consequence of the barriers
to U. S. copyright protection prior to §514’s enactment, foreign works
“restored” to protection by the measure had entered the public do-
main in this country. To cushion the impact of their placement in
protected status, §514 provides ameliorating accommodations for
parties who had exploited affected works before the URAA was
enacted.
Petitioners are orchestra conductors, musicians, publishers, and
others who formerly enjoyed free access to works §514 removed from
the public domain. They maintain that Congress, in passing §514,
exceeded its authority under the Copyright Clause and transgressed
First Amendment limitations. The District Court granted the Attor-
ney General’s motion for summary judgment. Affirming in part, the
Tenth Circuit agreed that Congress had not offended the Copyright
Clause, but concluded that §514 required further First Amendment
inspection in light of Eldred v. Ashcroft, 537 U. S. 186. On remand,
the District Court granted summary judgment to petitioners on the
First Amendment claim, holding that §514’s constriction of the public
domain was not justified by any of the asserted federal interests. The
Tenth Circuit reversed, ruling that §514 was narrowly tailored to fit
the important government aim of protecting U. S. copyright holders’
interests abroad.
Held:
1. Section 514 does not exceed Congress’ authority under the Copy-
right Clause. Pp. 13–23.
(a) The text of the Copyright Clause does not exclude application
of copyright protection to works in the public domain. Eldred is
largely dispositive of petitioners’ claim that the Clause’s confinement
of a copyright’s lifespan to a “limited Tim[e]” prevents the removal of
works from the public domain. In Eldred, the Court upheld the Cop-
yright Term Extension Act (CTEA), which extended, by 20 years, the
terms of existing copyrights. The text of the Copyright Clause, the
Court observed, contains no “command that a time prescription, once
set, becomes forever ‘fixed’ or ‘inalterable,’ ” and the Court declined to
infer any such command. 537 U. S., at 199. The construction peti-
tioners tender here is similarly infirm. The terms afforded works re-
stored by §514 are no less “limited” than those the CTEA lengthened.
Nor had the “limited Tim[e]” already passed for the works at issue
here—many of them works formerly denied any U. S. copyright pro-
tection—for a period of exclusivity must begin before it may end. Pe-
titioners also urge that the Government’s position would allow Con-
Cite as: 565 U. S. ____ (2012) 3
Syllabus
gress to legislate perpetual copyright terms by instituting successive
“limited” terms as prior terms expire. But as in Eldred, such hypo-
thetical misbehavior is far afield from this case. In aligning the
United States with other nations bound by Berne, Congress can hard-
ly be charged with a design to move stealthily toward a perpetual
copyright regime. Pp. 13–15.
(b) Historical practice corroborates the Court’s reading of the Copy-
right Clause to permit the protection of previously unprotected
works. In the Copyright Act of 1790, the First Congress protected
works that had been freely reproducible under State copyright laws.
Subsequent actions confirm that Congress has not understood the
Copyright Clause to preclude protection for existing works. Several
private bills restored the copyrights and patents of works and inven-
tions previously in the public domain. Congress has also passed gen-
erally applicable legislation granting copyrights and patents to works
and inventions that had lost protection. Pp. 15–19.
(c) Petitioners also argue that §514 fails to “promote the Progress of
Science” as contemplated by the initial words of the Copyright
Clause. Specifically, they claim that because §514 affects only works
already created, it cannot meet the Clause’s objective. The creation
of new works, however, is not the sole way Congress may promote
“Science,” i.e., knowledge and learning. In Eldred, this Court rejected
a nearly identical argument, concluding that the Clause does not de-
mand that each copyright provision, examined discretely, operate to
induce new works. Rather the Clause “empowers Congress to deter-
mine the intellectual property regimes that, overall, in that body’s
judgment, will serve the ends of the Clause.” 537 U. S., at 222.
Nothing in the text or history of the Copyright Clause, moreover, con-
fines the “Progress of Science” exclusively to “incentives for creation.”
Historical evidence, congressional practice, and this Court’s deci-
sions, in fact, suggest that inducing the dissemination of existing
works is an appropriate means to promote science. Pp. 20–22.
(d) Considered against this backdrop, §514 falls comfortably within
Congress’ Copyright Clause authority. Congress had reason to be-
lieve that a well-functioning international copyright system would
encourage the dissemination of existing and future works. And tes-
timony informed Congress that full compliance with Berne would ex-
pand the foreign markets available to U. S. authors and invigorate
protection against piracy of U. S. works abroad, thus benefitting cop-
yright-intensive industries stateside and inducing greater investment
in the creative process. This Court has no warrant to reject Congress’
rational judgment that exemplary adherence to Berne would serve
the objectives of the Copyright Clause. Pp. 22–23.
2. The First Amendment does not inhibit the restoration author-
4 GOLAN v. HOLDER
Syllabus
ized by §514. Pp. 23–32.
(a) The pathmarking Eldred decision is again instructive. There,
the Court held that the CTEA’s enlargement of a copyright’s duration
did not offend the First Amendment’s freedom of expression guaran-
tee. Recognizing that some restriction on expression is the inherent
and intended effect of every grant of copyright, the Court observed
that the Framers regarded copyright protection not simply as a limit
on the manner in which expressive works may be used, but also as an
“engine of free expression.” 537 U. S., at 219. The “traditional con-
tours” of copyright protection, i.e., the “idea/expression dichotomy”
and the “fair use” defense, moreover, serve as “built-in First Amend-
ment accommodations.” Ibid. Given the speech-protective purposes
and safeguards embraced by copyright law, there was no call for the
heightened review sought in Eldred. The Court reaches the same
conclusion here. Section 514 leaves undisturbed the idea/expression
distinction and the fair use defense. Moreover, Congress adopted
measures to ease the transition from a national scheme to an inter-
national copyright regime. Pp. 23–26.
(b) Petitioners claim that First Amendment interests of a higher
order are at stake because they—unlike their Eldred counterparts—
enjoyed “vested rights” in works that had already entered the public
domain. Their contentions depend on an argument already consid-
ered and rejected, namely, that the Constitution renders the public
domain largely untouchable by Congress. Nothing in the historical
record, subsequent congressional practice, or this Court’s jurispru-
dence warrants exceptional First Amendment solicitude for copy-
righted works that were once in the public domain. Congress has
several times adjusted copyright law to protect new categories of
works as well as works previously in the public domain. Section 514,
moreover, does not impose a blanket prohibition on public access.
The question is whether would-be users of certain foreign works must
pay for their desired use of the author’s expression, or else limit their
exploitation to “fair use” of those works. By fully implementing
Berne, Congress ensured that these works, like domestic and most
other foreign works, would be governed by the same legal regime.
Section 514 simply placed foreign works in the position they would
have occupied if the current copyright regime had been in effect when
those works were created and first published. Pp. 26–30.
609 F. 3d 1076, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined.
BREYER, J., filed a dissenting opinion, in which ALITO, J., joined. KA-
GAN, J., took no part in the consideration or decision of the case.
Cite as: 565 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–545
_________________
LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[January 18, 2012]
JUSTICE GINSBURG delivered the opinion of the Court.
The Berne Convention for the Protection of Literary and
Artistic Works (Berne Convention or Berne), which took
effect in 1886, is the principal accord governing interna-
tional copyright relations. Latecomer to the international
copyright regime launched by Berne, the United States
joined the Convention in 1989. To perfect U. S. implemen-
tation of Berne, and as part of our response to the Uru-
guay Round of multilateral trade negotiations, Congress,
in 1994, gave works enjoying copyright protection abroad
the same full term of protection available to U. S. works.
Congress did so in §514 of the Uruguay Round Agree-
ments Act (URAA), which grants copyright protection to
preexisting works of Berne member countries, protected in
their country of origin, but lacking protection in the United
States for any of three reasons: The United States did
not protect works from the country of origin at the time of
publication; the United States did not protect sound record-
ings fixed before 1972; or the author had failed to comply
with U. S. statutory formalities (formalities Congress no
longer requires as prerequisites to copyright protection).
The URAA accords no protection to a foreign work after
2 GOLAN v. HOLDER
Opinion of the Court
its full copyright term has expired, causing it to fall into
the public domain, whether under the laws of the country
of origin or of this country. Works encompassed by §514
are granted the protection they would have enjoyed had
the United States maintained copyright relations with the
author’s country or removed formalities incompatible with
Berne. Foreign authors, however, gain no credit for the
protection they lacked in years prior to §514’s enactment.
They therefore enjoy fewer total years of exclusivity than
do their U. S. counterparts. As a consequence of the barri-
ers to U. S. copyright protection prior to the enactment of
§514, foreign works “restored” to protection by the meas-
ure had entered the public domain in this country. To
cushion the impact of their placement in protected status,
Congress included in §514 ameliorating accommodations
for parties who had exploited affected works before the
URAA was enacted.
Petitioners include orchestra conductors, musicians, pub-
lishers, and others who formerly enjoyed free access to
works §514 removed from the public domain. They main-
tain that the Constitution’s Copyright and Patent Clause,
Art. I, §8, cl. 8, and First Amendment both decree the
invalidity of §514. Under those prescriptions of our high-
est law, petitioners assert, a work that has entered the
public domain, for whatever reason, must forever remain
there.
In accord with the judgment of the Tenth Circuit, we
conclude that §514 does not transgress constitutional
limitations on Congress’ authority. Neither the Copyright
and Patent Clause nor the First Amendment, we hold,
makes the public domain, in any and all cases, a territory
that works may never exit.
I
A
Members of the Berne Union agree to treat authors from
other member countries as well as they treat their own.
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
Berne Convention, Sept. 9, 1886, as revised at Stockholm
on July 14, 1967, Art. 1, 5(1), 828 U. N. T. S. 221, 225,
231–233. Nationals of a member country, as well as any
author who publishes in one of Berne’s 164 member states,
thus enjoy copyright protection in nations across the globe.
Art. 2(6), 3. Each country, moreover, must afford at least
the minimum level of protection specified by Berne. The
copyright term must span the author’s lifetime, plus at
least 50 additional years, whether or not the author has
complied with a member state’s legal formalities. Art.
5(2), 7(1). And, as relevant here, a work must be protected
abroad unless its copyright term has expired in either the
country where protection is claimed or the country of
origin. Art. 18(1)–(2).1
A different system of transnational copyright protection
long prevailed in this country. Until 1891, foreign works
were categorically excluded from Copyright Act protection.
Throughout most of the 20th century, the only eligible
foreign authors were those whose countries granted recip-
rocal rights to U. S. authors and whose works were print
——————
1 Article 18 of the Berne Convention provides:
“(1) This Convention shall apply to all works which, at the moment of
its coming into force, have not yet fallen into the public domain in the
country of origin through the expiry of the term of protection.
“(2) If, however, through the expiry of the term of protection which
was previously granted, a work has fallen into the public domain of the
country where protection is claimed, that work shall not be protected
anew.
“(3) The application of this principle shall be subject to any provisions
contained in special conventions to that effect existing or to be conclud-
ed between countries of the Union. In the absence of such provisions,
the respective countries shall determine, each in so far as it is con-
cerned, the conditions of application of this principle.
“(4) The preceding provisions shall also apply in the case of new
accessions to the Union and to cases in which protection is extended by
the application of Article 7 or by the abandonment of reservations.”
828 U. N. T. S. 251.
4 GOLAN v. HOLDER
Opinion of the Court
ed in the United States. See Act of Mar. 3, 1891, §3, 13, 26
Stat. 1107, 1110; Patry, The United States and Inter-
national Copyright Law, 40 Houston L. Rev. 749, 750
(2003).2 For domestic and foreign authors alike, protection
hinged on compliance with notice, registration, and re-
newal formalities.
The United States became party to Berne’s multilateral,
formality-free copyright regime in 1989. Initially, Con-
gress adopted a “minimalist approach” to compliance with
the Convention. H. R. Rep. No. 100–609, p. 7 (1988) (here-
inafter BCIA House Report). The Berne Convention Im-
plementation Act of 1988 (BCIA), 102 Stat. 2853, made
“only those changes to American copyright law that [were]
clearly required under the treaty’s provisions,” BCIA
House Report, at 7. Despite Berne’s instruction that
member countries—including “new accessions to the Union”—
protect foreign works under copyright in the country
of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the
BCIA accorded no protection for “any work that is in the
public domain in the United States,” §12, 102 Stat. 2860.
Protection of future foreign works, the BCIA indicated,
satisfied Article 18. See §2(3), 102 Stat. 2853 (“The
amendments made by this Act, together with the law as it
exists on the date of the enactment of this Act, satisfy the
obligations of the United States in adhering to the Berne
Convention . . . .”). Congress indicated, however, that it
——————
2 As noted by the Government’s amici, the United States excluded
foreign works from copyright not to swell the number of unprotected
works available to the consuming public, but to favor domestic publish-
ing interests that escaped paying royalties to foreign authors. See Brief
for International Publishers Association et al. as Amici Curiae 8–15.
This free-riding, according to Senator Jonathan Chace, champion of the
1891 Act, made the United States “the Barbary coast of literature” and
its people “the buccaneers of books.” S. Rep. No. 622, 50th Cong., 1st
Sess., p. 2 (1888).
Cite as: 565 U. S. ____ (2012) 5
Opinion of the Court
had not definitively rejected “retroactive” protection for
preexisting foreign works; instead it had punted on this
issue of Berne’s implementation, deferring consideration
until “a more thorough examination of Constitutional,
commercial, and consumer considerations is possible.”
BCIA House Report, at 51, 52.3
The minimalist approach essayed by the United States
did not sit well with other Berne members.4 While negoti-
——————
3 See also S. Rep. No. 103–412, p. 225 (1994) (“While the United
States declared its compliance with the Berne Convention in 1989, it
never addressed or enacted legislation to implement Article 18 of
the Convention.”); Memorandum from Chris Schroeder, Counselor to the
Assistant Attorney General, Office of Legal Counsel, Dept. of Justice
(DOJ), to Ira S. Shapiro, General Counsel, Office of the U. S. Trade
Representative (July 29, 1994), in W. Patry, Copyright and the GATT,
p. C–15 (1995) (“At the time Congress was debating the BCIA, it
reserved the issue of removing works from the public domain.”); Gen-
eral Agreement on Tariffs and Trade (GATT): Intellectual Property
Provisions, Joint Hearing before the Subcommittee on Intellectual
Property and Judicial Administration of the House Committee on the
Judiciary and the Subcommittee on Patents, Copyrights and Trade-
marks of the Senate Committee on the Judiciary, 103d Cong., 2d
Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce
A. Lehman, Assistant Secretary of Commerce and Commissioner of
Patents and Trademarks (Commerce Dept.)) (“When the United States
adhered to the Berne Convention, Congress . . . acknowledged that the
possibility of restoring copyright protection for foreign works that had
fallen into the public domain in the United States for failure to comply
with formalities was an issue that merited further discussion.”).
4 The dissent implicitly agrees that, whatever tentative conclusion
Congress reached in 1988, Article 18 requires the United States to
“protect the foreign works at issue,” at least absent a special conven-
tion the United States did not here negotiate. Post, at 22. See
also post, at 23 (citing Gervais, Golan v. Holder: A Look at the Con-
straints Imposed by the Berne Convention, 64 Vand. L. Rev. En Banc
147, 151–152 (2011)); id., at 152 (“[T]he Convention clearly requires
that some level of protection be given to foreign authors whose works
have entered the public domain (other than by expiration of previous
copyright).”). Accord S. Ricketson, The Berne Convention for the
Protection of Literary and Artistic Works 1886–1986, p. 675 (1987)
6 GOLAN v. HOLDER
Opinion of the Court
ations were ongoing over the North American Free Trade
Agreement (NAFTA), Mexican authorities complained
about the United States’ refusal to grant protection, in
accord with Article 18, to Mexican works that remained
under copyright domestically. See Intellectual Property
and International Issues, Hearings before the Subcommit-
tee on Intellectual Property and Judicial Administration,
House Committee on the Judiciary, 102d Cong., 1st Sess.,
168 (1991) (statement of Ralph Oman, U. S. Register of
Copyrights).5 The Register of Copyrights also reported
“questions” from Turkey, Egypt, and Austria. Ibid. Thai-
land and Russia balked at protecting U. S. works, copy-
righted here but in those countries’ public domains, until
the United States reciprocated with respect to their au-
thors’ works. URAA Joint Hearing 137 (statement of Ira
S. Shapiro, General Counsel, Office of the U. S. Trade
Representative (USTR)); id., at 208 (statement of Profes-
sor Shira Perlmutter); id., at 291 (statement of Jason S.
Berman, Recording Industry Association of America
(RIAA)).6
——————
(“There is no basis on which [protection of existing works under Article
18] can be completely denied. The conditions and reservations,” au-
thorized by Article 18(3) [and stressed by the dissent, post, at 23–24]
are of “limited” and “transitional” duration and “would not be permitted
to deny [protection] altogether in relation to a particular class . . . of
works.”).
5 NAFTA ultimately included a limited retroactivity provision—a
precursor to §514 of the URAA—granting U. S. copyright protection to
certain Mexican and Canadian films. These films had fallen into the
public domain, between 1978 and 1988, for failure to meet U. S. notice
requirements. See North American Free Trade Agreement Implemen-
tation Act, §334, 107 Stat. 2115; Brief for Franklin Pierce Center for
Intellectual Property as Amicus Curiae 14–16. One year later, Con-
gress replaced this provision with the version of 17 U. S. C. §104A at
issue here. See 3 M. Nimmer & D. Nimmer, Copyright §9A.03, 9A.04,
pp. 9A–17, 9A–22 (2011) (hereinafter Nimmer).
6 This tension between the United States and its new Berne counter
Cite as: 565 U. S. ____ (2012) 7
Opinion of the Court
Berne, however, did not provide a potent enforcement
mechanism. The Convention contemplates dispute resolu-
tion before the International Court of Justice. Art. 33(1).
But it specifies no sanctions for noncompliance and allows
parties, at any time, to declare themselves “not . . . bound”
by the Convention’s dispute resolution provision. Art.
33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en-
forcement actions were launched before 1994. D. Gervais,
The TRIPS Agreement 213, and n. 134 (3d ed. 2008).
Although “several Berne Union Members disagreed with
[our] interpretation of Article 18,” the USTR told Con-
gress, the Berne Convention did “not provide a meaningful
dispute resolution process.” URAA Joint Hearing 137
(statement of Shapiro). This shortcoming left Congress
“free to adopt a minimalist approach and evade Article
18.” Karp, Final Report, Berne Article 18 Study on Retro-
active United States Copyright Protection for Berne and
other Works, 20 Colum.-VLA J. L. & Arts 157, 172 (1996).
The landscape changed in 1994. The Uruguay round of
multilateral trade negotiations produced the World Trade
Organization (WTO) and the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS).7 The
United States joined both. TRIPS mandates, on pain of
WTO enforcement, implementation of Berne’s first 21
articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring
adherence to all but the “moral rights” provisions of Arti-
cle 6bis). The WTO gave teeth to the Convention’s re-
quirements: Noncompliance with a WTO ruling could
——————
parties calls into question the dissent’s assertion that, despite the 1988
Act’s minimalist approach, “[t]he United States obtained the benefits of
Berne for many years.” Post, at 22–23. During this six-year period,
Congress had reason to doubt that U. S. authors enjoyed the full
benefits of Berne membership.
7 Marrakesh Agreement Establishing the World Trade Organization,
Apr. 15, 1994, 1867 U. N. T. S. 154.
8 GOLAN v. HOLDER
Opinion of the Court
subject member countries to tariffs or cross-sector retalia-
tion. See Gervais, supra, at 213; 7 W. Patry, Copyright
§24:1, pp. 24–8 to 24–9 (2011). The specter of WTO en-
forcement proceedings bolstered the credibility of our
trading partners’ threats to challenge the United States
for inadequate compliance with Article 18. See URAA
Joint Hearing 137 (statement of Shapiro, USTR) (“It is
likely that other WTO members would challenge the
current U. S. implementation of Berne Article 18 under
[WTO] procedures.”).8
Congress’ response to the Uruguay agreements put to
rest any questions concerning U. S. compliance with Arti-
cle 18. Section 514 of the URAA, 108 Stat. 4976 (codified
at 17 U. S. C. §104A, 109(a)),9 extended copyright to works
that garnered protection in their countries of origin,10 but
——————
8 Proponents of prompt congressional action urged that avoiding a
trade enforcement proceeding—potentially the WTO’s first—would be
instrumental in preserving the United States’ “reputation as a world
leader in the copyright field.” URAA Joint Hearing 241 (statement of
Eric Smith, International Intellectual Property Alliance (IIPA)). In this
regard, U. S. negotiators reported that widespread perception of U. S.
noncompliance was undermining our leverage in copyright negotia-
tions. Unimpeachable adherence to Berne, Congress was told, would
help ensure enhanced foreign protection, and hence profitable dissemi-
nation, for existing and future U. S. works. See id., at 120 (app. to
statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro-
active] protection for existing works in our own law will improve our
position in future negotiations.”); id., at 268 (statement of Berman,
RIAA).
9 Title 17 U. S. C. §104A is reproduced in full in an appendix to this
opinion.
10 Works from most, but not all, foreign countries are eligible for pro-
tection under §514. The provision covers only works that have “at least
one author or rightholder who was, at the time the work was created,
a national or domiciliary of an eligible country.” 17 U. S. C.
§104A(h)(6)(D). An “eligible country” includes any “nation, other than
the United States, that—(A) becomes a WTO member country after the
date of the enactment of the [URAA]; [or] (B) on such date of enactment
Cite as: 565 U. S. ____ (2012) 9
Opinion of the Court
had no right to exclusivity in the United States for any
of three reasons: lack of copyright relations between the
country of origin and the United States at the time of
publication; lack of subject-matter protection for sound
recordings fixed before 1972; and failure to comply with
U. S. statutory formalities (e.g., failure to provide notice of
copyright status, or to register and renew a copyright).
See §104A(h)(6)(B)–(C).11
Works that have fallen into the public domain after the
——————
is, or after such date of enactment becomes, a nation adhering to
the Berne Convention.” §104A(h)(3). As noted above, see supra,
at 3, 164 countries adhere to the Berne Convention. World Intellec-
tual Property Organization, Contracting Parties: Berne Convention,
www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s
case file).
11 From the first Copyright Act until late in the 20th century, Con-
gress conditioned copyright protection on compliance with certain
statutory formalities. The most notable required an author to register
her work, renew that registration, and affix to published copies notice
of copyrighted status. The formalities drew criticism as a trap for the
unwary. See, e.g., 2 Nimmer §7.01[A], p. 7–8; Doyle, Cary, McCannon,
& Ringer, Notice of Copyright, Study No. 7, p. 46 (1957), reprinted in
1 Studies on Copyright 229, 272 (1963).
In 1976, Congress eliminated the registration renewal requirement
for future works. Copyright Act of 1976, §302, 408, 90 Stat. 2572, 2580.
In 1988, it repealed the mandatory notice prerequisite. BCIA §7, 102
Stat. 2857. And in 1992, Congress made renewal automatic for works
still in their first term of protection. Copyright Amendments Act of
1992, 106 Stat. 264–266. The Copyright Act retains, however, incen-
tives for authors to register their works and provide notice of the works’
copyrighted status. See, e.g., 17 U. S. C. §405(b) (precluding actual and
statutory damages against “innocent infringers” of a work that lacked
notice of copyrighted status); §411(a) (requiring registration of U. S.
“work[s],” but not foreign works, before an owner may sue for infringe-
ment). The revisions successively made accord with Berne Convention
Article 5(2), which proscribes application of copyright formalities to
foreign authors. Berne, however, affords domestic authors no escape
from domestic formalities. See Art. 5(3) (protection within country of
origin is a matter of domestic law).
10 GOLAN v. HOLDER
Opinion of the Court
expiration of a full copyright term—either in the United
States or the country of origin—receive no further protec-
tion under §514. Ibid.12 Copyrights “restored”13 under
URAA §514 “subsist for the remainder of the term of
copyright that the work would have otherwise been grant-
ed . . . if the work never entered the public domain.”
§104A(a)(1)(B). Prospectively, restoration places foreign
works on an equal footing with their U. S. counterparts;
assuming a foreign and domestic author died the same
day, their works will enter the public domain simultane-
ously. See §302(a) (copyrights generally expire 70 years
after the author’s death). Restored works, however, re-
ceive no compensatory time for the period of exclusivity
they would have enjoyed before §514’s enactment, had
they been protected at the outset in the United States.
Their total term, therefore, falls short of that available to
similarly situated U. S. works.
The URAA’s disturbance of the public domain hardly
escaped Congress’ attention. Section 514 imposed no
liability for any use of foreign works occurring before
restoration. In addition, anyone remained free to copy and
use restored works for one year following §514’s enact-
ment. See 17 U. S. C. §104A(h)(2)(A). Concerns about
§514’s compatibility with the Fifth Amendment’s Takings
——————
12 Title 17 U. S. C. §104A(h)(6)(B) defines a “restored work” to exclude
“an original work of authorship” that is “in the public domain in its
source country through expiration of [its] term of protection.” This
provision tracks Berne’s denial of protection for any work that has
“fallen into the public domain in the country of origin through the
expiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251.
13 Restoration is a misnomer insofar as it implies that all works
protected under §104A previously enjoyed protection. Each work in
the public domain because of lack of national eligibility or subject-
matter protection, and many that failed to comply with formalities,
never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer
§9A.04[A][1][b][iii], at 9A–26, and n. 29.4.
Cite as: 565 U. S. ____ (2012) 11
Opinion of the Court
Clause led Congress to include additional protections for
“reliance parties”—those who had, before the URAA’s
enactment, used or acquired a foreign work then in the
public domain. See §104A(h)(3)–(4).14 Reliance parties
may continue to exploit a restored work until the owner of
the restored copyright gives notice of intent to enforce—
either by filing with the U. S. Copyright Office within two
years of restoration, or by actually notifying the reliance
party. §104A(c), (d)(2)(A)(i), and (B)(i). After that, reli-
ance parties may continue to exploit existing copies for a
grace period of one year. §104A(d)(2)(A)(ii), and (B)(ii).
Finally, anyone who, before the URAA’s enactment, creat-
ed a “derivative work” based on a restored work may
indefinitely exploit the derivation upon payment to the
copyright holder of “reasonable compensation,” to be set by
a district judge if the parties cannot agree. §104A(d)(3).
B
In 2001, petitioners filed this lawsuit challenging §514.
They maintain that Congress, when it passed the URAA,
exceeded its authority under the Copyright Clause and
transgressed First Amendment limitations.15 The District
——————
14 A reliance party must have used the work in a manner that would
constitute infringement had a valid copyright been in effect. See
§104A(h)(4)(A). After restoration, the reliance party is limited to her
previous uses. A performer of a restored work, for example, cannot,
post-restoration, venture to sell copies of the script. See 3 Nimmer
§9A.04[C][1][a], at 9A–45 to 9A–46.
15 Petitioners’ complaint also challenged the constitutionality of the
Copyright Term Extension Act, 112 Stat. 2827, which added 20 years to
the duration of existing and future copyrights. After this Court rejected
a similar challenge in Eldred v. Ashcroft, 537 U. S. 186 (2003), the
District Court dismissed this portion of petitioners’ suit on the plead-
ings, Golan v. Ashcroft, 310 F. Supp. 2d 1215 (D. Colo. 2004). The
Tenth Circuit affirmed, Golan v. Gonzales, 501 F. 3d 1179 (2007), and
petitioners do not attempt to revive that claim in this Court, Pet. for
Cert. 7, n. 2. Neither have petitioners challenged the District Court’s
12 GOLAN v. HOLDER
Opinion of the Court
Court granted the Attorney General’s motion for summary
judgment. Golan v. Gonzales, No. Civ. 01–B–1854, 2005
WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petition-
ers’ Copyright Clause argument, the court stated that
Congress “has historically demonstrated little compunc-
tion about removing copyrightable materials from the
public domain.” Id., at *14. The court next declined to
part from “the settled rule that private censorship via
copyright enforcement does not implicate First Amend-
ment concerns.” Id., at *17.
The Court of Appeals for the Tenth Circuit affirmed in
part. Golan v. Gonzales, 501 F. 3d 1179 (2007). The
public domain, it agreed, was not a “threshold that Con-
gress” was powerless to “traverse in both directions.” Id.,
at 1187 (internal quotations marks omitted). But §514, as
the Court of Appeals read our decision in Eldred v. Ash-
croft, 537 U. S. 186 (2003), required further First Amend-
ment inspection, 501 F. 3d, at 1187. The measure “ ‘al-
tered the traditional contours of copyright protection,’ ” the
court said—specifically, the “bedrock principle” that once
works enter the public domain, they do not leave. Ibid.(quoting Eldred, 537 U. S., at 221). The case was remand-
ed with an instruction to the District Court to address the
First Amendment claim in light of the Tenth Circuit’s
opinion.
On remand, the District Court’s starting premise was
uncontested: Section 514 does not regulate speech on the
basis of its content; therefore the law would be upheld if
“narrowly tailored to serve a significant government inter-
est.” 611 F. Supp. 2d 1165, 1170–1171 (Colo. 2009) (quot-
ing Ward v. Rock Against Racism, 491 U. S. 781, 791
(1989)). Summary judgment was due petitioners, the
——————
entry of summary judgment for the Government on the claim that §514
violates the substantive component of the Due Process Clause.
Cite as: 565 U. S. ____ (2012) 13
Opinion of the Court
court concluded, because §514’s constriction of the public
domain was not justified by any of the asserted federal
interests: compliance with Berne, securing greater protec-
tion for U. S. authors abroad, or remediation of the inequi-
table treatment suffered by foreign authors whose works
lacked protection in the United States. 611 F. Supp. 2d, at
1172–1177.
The Tenth Circuit reversed. Deferring to Congress’
predictive judgments in matters relating to foreign affairs,
the appellate court held that §514 survived First Amend-
ment scrutiny. Specifically, the court determined that the
law was narrowly tailored to fit the important government
aim of protecting U. S. copyright holders’ interests abroad.
609 F. 3d 1076 (2010).
We granted certiorari to consider petitioners’ challenge
to §514 under both the Copyright Clause and the First
Amendment, 562 U. S. ___ (2011), and now affirm.
II
We first address petitioners’ argument that Congress
lacked authority, under the Copyright Clause, to enact
§514. The Constitution states that “Congress shall have
Power . . . [t]o promote the Progress of Science . . . by
securing for limited Times to Authors . . . the exclusive
Right to their . . . Writings.” Art. I, §8, cl. 8. Petitioners
find in this grant of authority an impenetrable barrier to
the extension of copyright protection to authors whose
writings, for whatever reason, are in the public domain.
We see no such barrier in the text of the Copyright Clause,
historical practice, or our precedents.
A
The text of the Copyright Clause does not exclude appli-
cation of copyright protection to works in the public do-
main. Symposium, Congressional Power and Limitations
Inherent in the Copyright Clause, 30 Colum. J. L. & Arts
14 GOLAN v. HOLDER
Opinion of the Court
259, 266 (2007). Petitioners’ contrary argument relies
primarily on the Constitution’s confinement of a copy-
right’s lifespan to a “limited Tim[e].” “Removing works
from the public domain,” they contend, “violates the ‘lim-
ited [t]imes’ restriction by turning a fixed and predictable
period into one that can be reset or resurrected at any
time, even after it expires.” Brief for Petitioners 22.
Our decision in Eldred is largely dispositive of petition-
ers’ limited-time argument. There we addressed the
question whether Congress violated the Copyright Clause
when it extended, by 20 years, the terms of existing copy-
rights. 537 U. S., at 192–193 (upholding Copyright Term
Extension Act (CTEA)). Ruling that Congress acted with-
in constitutional bounds, we declined to infer from the text
of the Copyright Clause “the command that a time pre-
scription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ”
Id., at 199. “The word ‘limited,’ ” we observed, “does not
convey a meaning so constricted.” Ibid. Rather, the term
is best understood to mean “confine[d] within certain
bounds,” “restrain[ed],” or “circumscribed.” Ibid. (internal
quotation marks omitted). The construction petitioners
tender closely resembles the definition rejected in Eldred
and is similarly infirm.
The terms afforded works restored by §514 are no less
“limited” than those the CTEA lengthened. In light of
Eldred, petitioners do not here contend that the term
Congress has granted U. S. authors—their lifetimes, plus
70 years—is unlimited. See 17 U. S. C. §302(a). Nor do
petitioners explain why terms of the same duration, as
applied to foreign works, are not equally “circumscribed”
and “confined.” See Eldred, 537 U. S., at 199. Indeed, as
earlier noted, see supra, at 2, 10, the copyrights of restored
foreign works typically last for fewer years than those of
their domestic counterparts.
The difference, petitioners say, is that the limited time
had already passed for works in the public domain. What
Cite as: 565 U. S. ____ (2012) 15
Opinion of the Court
was that limited term for foreign works once excluded
from U. S. copyright protection? Exactly “zero,” petition-
ers respond. Brief for Petitioners 22 (works in question
“received a specific term of protection . . . sometimes ex-
pressly set to zero”; “at the end of that period,” they “en-
tered the public domain”); Tr. of Oral Arg. 52 (by “refusing
to provide any protection for a work,” Congress “set[s] the
term at zero,” and thereby “tell[s] us when the end has
come”). We find scant sense in this argument, for surely a
“limited time” of exclusivity must begin before it may
end.16
Carried to its logical conclusion, petitioners persist, the
Government’s position would allow Congress to institute a
second “limited” term after the first expires, a third after
that, and so on. Thus, as long as Congress legislated in
installments, perpetual copyright terms would be achieva-
ble. As in Eldred, the hypothetical legislative misbehavior
petitioners posit is far afield from the case before us. See
537 U. S., at 198–200, 209–210. In aligning the United
States with other nations bound by the Berne Convention,
and thereby according equitable treatment to once dis-
favored foreign authors, Congress can hardly be charged
with a design to move stealthily toward a regime of per-
petual copyrights.
B
Historical practice corroborates our reading of the Copy-
right Clause to permit full U. S. compliance with Berne.
Undoubtedly, federal copyright legislation generally has
not affected works in the public domain. Section 514’s
disturbance of that domain, petitioners argue, distin-
——————
16 Cf.3 Nimmer §9A.02[A][2], at 9A–11, n. 28 (“[I]t stretches the
language of the Berne Convention past the breaking point to posit
that following ‘expiry of the zero term’ the . . . work need not be
resurrected.”).
16 GOLAN v. HOLDER
Opinion of the Court
guishes their suit from Eldred’s. In adopting the CTEA,
petitioners note, Congress acted in accord with “an unbro-
ken congressional practice” of granting pre-expiration
term extensions, 537 U. S., at 200. No comparable prac-
tice, they maintain, supports §514.
On occasion, however, Congress has seen fit to protect
works once freely available. Notably, the Copyright Act of
1790 granted protection to many works previously in the
public domain. Act of May 31, 1790 (1790 Act), §1, 1 Stat.
124 (covering “any map, chart, book, or books already
printed within these United States”). Before the Act
launched a uniform national system, three States provided
no statutory copyright protection at all.17 Of those that
did afford some protection, seven failed to protect maps;18
eight did not cover previously published books;19 and all
ten denied protection to works that failed to comply with
formalities.20 The First Congress, it thus appears, did not
view the public domain as inviolate. As we have recog-
nized, the “construction placed upon the Constitution by
[the drafters of] the first [copyright] act of 1790 and the
act of 1802 . . . men who were contemporary with [the
Constitution’s] formation, many of whom were members of
the convention which framed it, is of itself entitled to very
great weight.” Burrow-Giles Lithographic Co. v. Sarony,
——————
17 See B. Bugbee, Genesis of American Patent and Copyright Law
123–124 (1967) (hereinafter Bugbee) (Delaware, Maryland, and
Pennsylvania).
18 See 1783 Mass. Acts p. 236; 1783 N. J. Laws p. 47; 1783 N. H. Laws
p. 521; 1783 R. I. Laws pp. 6–7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch.
VI; 1786 N. Y. Laws p. 298.
19 1783 Conn. Pub. Acts no. 617; 1783 N. J. Laws p. 47; 1785 N. C.
Laws p. 563; 1786 Ga. Laws p. 323. In four States, copyright enforce-
ment was restricted to works “not yet printed” or “hereinafter pub-
lished.” 1783 Mass. Acts p. 236; 1783 N. H. Laws p. 521; 1783 R. I.
Laws pp. 6–7; 1784 S. C. Acts p. 49.
20 See Bugbee 109–123.
Cite as: 565 U. S. ____ (2012) 17
Opinion of the Court
111 U. S. 53, 57 (1884).21
Subsequent actions confirm that Congress has not un-
derstood the Copyright Clause to preclude protection for
existing works. Several private bills restored the copy-
rights of works that previously had been in the public
domain. See Act of Feb. 19, 1849 (Corson Act), ch. 57, 9
Stat. 763; Act of June 23, 1874 (Helmuth Act), ch. 534, 18
Stat. 618; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat.
1396. These bills were unchallenged in court.
Analogous patent statutes, however, were upheld in
litigation.22 In 1808, Congress passed a private bill restor-
ing patent protection to Oliver Evans’ flour mill. When
Evans sued for infringement, first Chief Justice Marshall
in the Circuit Court, Evans v. Jordan, 8 F. Cas. 872 (No.
4,564) (Va. 1813), and then Justice Bushrod Washington
for this Court, Evans v. Jordan, 9 Cranch 199 (1815),
upheld the restored patent’s validity. After the patent’s
expiration, the Court said, “a general right to use [Evans’]
discovery was not so vested in the public” as to allow the
defendant to continue using the machinery, which he had
——————
21 The parties debate the extent to which the First Congress removed
works from the public domain. We have held, however, that at least
some works protected by the 1790 Act previously lacked protection. In
Wheaton v. Peters, 8 Pet. 591 (1834), the Court ruled that before enact-
ment of the 1790 Act, common-law copyright protection expired upon
first publication. Id., at 657, 663. Thus published works covered by the
1790 Act previously would have been in the public domain unless
protected by state statute. Had the founding generation perceived the
constitutional boundary petitioners advance today, the First Congress
could have designed a prospective scheme that left the public domain
undisturbed. Accord Luck’s Music Library, Inc. v. Gonzales, 407 F. 3d
1262, 1265 (CADC 2005) (Section 514 does not offend the Copyright
Clause because, inter alia, “evidence from the First Congress,” as
confirmed by Wheaton, “points toward constitutionality.”).
22 Here, as in Eldred, “[b]ecause the Clause empowering Congress to
confer copyrights also authorizes patents, congressional practice with
respect to patents informs our inquiry.” 537 U. S., at 201.
18 GOLAN v. HOLDER
Opinion of the Court
constructed between the patent’s expiration and the bill’s
passage. Id., at 202. See also Blanchard v. Sprague, 3
F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I
never have entertained any doubt of the constitutional
authority of congress” to “give a patent for an invention,
which . . . was in public use and enjoyed by the community
at the time of the passage of the act.”).
This Court again upheld Congress’ restoration of an
invention to protected status in McClurg v. Kingsland, 1
How. 202 (1843). There we enforced an 1839 amendment
that recognized a patent on an invention despite its prior
use by the inventor’s employer. Absent such dispensation,
the employer’s use would have rendered the invention
unpatentable, and therefore open to exploitation without
the inventor’s leave. Id., at 206–209.
Congress has also passed generally applicable legisla-
tion granting patents and copyrights to inventions and
works that had lost protection. An 1832 statute author-
ized a new patent for any inventor whose failure, “by
inadvertence, accident, or mistake,” to comply with statu-
tory formalities rendered the original patent “invalid or
inoperative.” Act of July 3, §3, 4 Stat. 559. An 1893
measure similarly allowed authors who had not timely
deposited their work to receive “all the rights and privileg-
es” the Copyright Act affords, if they made the required
deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat.
743.23 And in 1919 and 1941, Congress authorized the
President to issue proclamations granting protection to
foreign works that had fallen into the public domain dur-
ing World Wars I and II. See Act of Dec. 18, 1919, ch. 11,
——————
23 Section 514 is in line with these measures; like them, it accords
protection to works that had lapsed into the public domain because of
failure to comply with U. S. statutory formalities. See supra, at 9, and
n. 11.
Cite as: 565 U. S. ____ (2012) 19
Opinion of the Court
41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732.24
Pointing to dictum in Graham v. John Deere Co. of
Kansas City, 383 U. S. 1 (1966), petitioners would have us
look past this history. In Graham, we stated that “Con-
gress may not authorize the issuance of patents whose
effects are to remove existent knowledge from the public
domain, or to restrict free access to materials already
available.” Id., at 6; post, at 15. But as we explained in
Eldred, this passage did not speak to the constitutional
limits on Congress’ copyright and patent authority. Ra-
ther, it “addressed an invention’s very eligibility for patent
protection.” 537 U. S., at 202, n. 7.
Installing a federal copyright system and ameliorating
the interruptions of global war, it is true, presented Con-
gress with extraordinary situations. Yet the TRIPS ac-
cord, leading the United States to comply in full measure
with Berne, was also a signal event. See supra, at 7–8; cf.
Eldred, 537 U. S., at 259, 264–265 (BREYER, J., dissenting)
(acknowledging importance of international uniformity
advanced by U. S. efforts to conform to the Berne Conven-
tion). Given the authority we hold Congress has, we will
not second-guess the political choice Congress made be-
tween leaving the public domain untouched and embrac-
ing Berne unstintingly. Cf. id., at 212–213.
——————
24 Legislation of this order, petitioners argue, is best understood as an
exercise of Congress’ power to remedy excusable neglect. Even so, the
remedy sheltered creations that, absent congressional action, would
have been open to free exploitation. Such action, according to petition-
ers’ dominant argument, see supra, at 13–14, is ever and always
impermissible. Accord Luck’s Music Library, 407 F. 3d, at 1265–1266
(“Plaintiffs urge that [the 1790 Act and the wartime legislation] simply
extended the time limits for filing and [did] not purport to modify the
prohibition on removing works from the public domain. But to the
extent that potential copyright holders failed to satisfy procedural
requirements, such works”—like those protected by §514—“would
necessarily have already entered the public domain . . . .”).
20 GOLAN v. HOLDER
Opinion of the Court
C
Petitioners’ ultimate argument as to the Copyright and
Patent Clause concerns its initial words. Congress is
empowered to “promote the Progress of Science and useful
Arts” by enacting systems of copyright and patent protec-
tion. U. S. Const., Art. I, §8, cl. 8. Perhaps counterintui-
tively for the contemporary reader, Congress’ copyright
authority is tied to the progress of science; its patent
authority, to the progress of the useful arts. See Graham,
383 U. S., at 5, and n. 1; Evans, 8 F. Cas., at 873
(Marshall, J.).
The “Progress of Science,” petitioners acknowledge,
refers broadly to “the creation and spread of knowledge
and learning.” Brief for Petitioners 21; accord post, at 1.
They nevertheless argue that federal legislation cannot
serve the Clause’s aim unless the legislation “spur[s] the
creation of . . . new works.” Brief for Petitioners 24; accord
post, at 1–2, 8, 17. Because §514 deals solely with works
already created, petitioners urge, it “provides no plausible
incentive to create new works” and is therefore invalid.
Reply Brief 4.25
The creation of at least one new work, however, is not
the sole way Congress may promote knowledge and learn-
ing. In Eldred, we rejected an argument nearly identical
to the one petitioners rehearse. The Eldred petitioners
urged that the “CTEA’s extension of existing copyrights
categorically fails to ‘promote the Progress of Science,’ . . .
because it does not stimulate the creation of new works.”
537 U. S., at 211–212. In response to this argument, we
——————
25 But see Brief for Motion Picture Association of America as Amicus
Curiae 27 (observing that income from existing works can finance the
creation and publication of new works); Eldred, 537 U. S., at 208, n. 15(noting that Noah Webster “supported his entire family from the
earnings on his speller and grammar during the twenty years he took
to complete his dictionary” (internal quotation marks omitted)).
Cite as: 565 U. S. ____ (2012) 21
Opinion of the Court
held that the Copyright Clause does not demand that each
copyright provision, examined discretely, operate to induce
new works. Rather, we explained, the Clause “empowers
Congress to determine the intellectual property regimes
that, overall, in that body’s judgment, will serve the ends
of the Clause.” Id., at 222. And those permissible ends,
we held, extended beyond the creation of new works. See
id., at 205–206 (rejecting the notion that “ ‘the only way to
promote the progress of science [is] to provide incentives
to create new works’ ” (quoting Perlmutter, Participation in
the International Copyright System as a Means to Pro-
mote the Progress of Science and Useful Arts, 36 Loyola
(LA) L. Rev. 323, 332 (2002))).26
Even were we writing on a clean slate, petitioners’
argument would be unavailing. Nothing in the text of the
Copyright Clause confines the “Progress of Science” exclu-
sively to “incentives for creation.” Id., at 324, n. 5 (inter-
nal quotation marks omitted). Evidence from the found-
ing, moreover, suggests that inducing dissemination—as
opposed to creation—was viewed as an appropriate means
to promote science. See Nachbar, Constructing Copy-
right’s Mythology, 6 Green Bag 2d 37, 44 (2002) (“The
scope of copyright protection existing at the time of the
framing,” trained as it was on “publication, not creation,”
“is inconsistent with claims that copyright must promote
creative activity in order to be valid.” (internal quotation
marks omitted)). Until 1976, in fact, Congress made
“federal copyright contingent on publication[,] [thereby]
——————
26 The dissent also suggests, more tentatively, that at least where
copyright legislation extends protection to works previously in the
public domain, Congress must counterbalance that restriction with new
incentives to create. Post, at 8. Even assuming the public domain were
a category of constitutional significance, contra supra, at 13–19, we
would not understand “the Progress of Science” to have this contingent
meaning.
22 GOLAN v. HOLDER
Opinion of the Court
providing incentives not primarily for creation,” but for
dissemination. Perlmutter, supra, at 324, n. 5. Our deci-
sions correspondingly recognize that “copyright supplies
the economic incentive to create and disseminate ideas.”
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U. S. 539, 558 (1985) (emphasis added). See also Eldred,
537 U. S., at 206.27
Considered against this backdrop, §514 falls comfortably
within Congress’ authority under the Copyright Clause.
Congress rationally could have concluded that adherence
to Berne “promotes the diffusion of knowledge,” Brief for
Petitioners 4. A well-functioning international copyright
system would likely encourage the dissemination of exist-
ing and future works. See URAA Joint Hearing 189
(statement of Professor Perlmutter). Full compliance with
Berne, Congress had reason to believe, would expand the
foreign markets available to U. S. authors and invigorate
protection against piracy of U. S. works abroad, S. Rep.
No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing
291 (statement of Berman, RIAA); id., at 244, 247 (state-
ment of Smith, IIPA), thereby benefitting copyright-
intensive industries stateside and inducing greater
investment in the creative process.
The provision of incentives for the creation of new works
is surely an essential means to advance the spread of
knowledge and learning. We hold, however, that it is not
the sole means Congress may use “[t]o promote the Pro-
gress of Science.” See Perlmutter, supra, at 332 (United
States would “lose all flexibility” were the provision of
incentives to create the exclusive way to promote the
——————
27 That the same economic incentives might also induce the dissemi-
nation of futons, fruit, or Bibles, see post, at 20, is no answer to this
evidence that legislation furthering the dissemination of literary
property has long been thought a legitimate way to “promote the
Progress of Science.”
Cite as: 565 U. S. ____ (2012) 23
Opinion of the Court
progress of science).28 Congress determined that exem-
plary adherence to Berne would serve the objectives of the
Copyright Clause. We have no warrant to reject the ra-
tional judgment Congress made.
III
A
We next explain why the First Amendment does not
inhibit the restoration authorized by §514. To do so, we
first recapitulate the relevant part of our pathmarking
decision in Eldred. The petitioners in Eldred, like those
here, argued that Congress had violated not only the
“limited Times” prescription of the Copyright Clause. In
addition, and independently, the Eldred petitioners
charged, Congress had offended the First Amendment’s
freedom of expression guarantee. The CTEA’s 20-year
enlargement of a copyright’s duration, we held in Eldred,
offended neither provision.
Concerning the First Amendment, we recognized that
some restriction on expression is the inherent and in-
tended effect of every grant of copyright. Noting that the
“Copyright Clause and the First Amendment were adopted
close in time,” 537 U. S., at 219, we observed that the
Framers regarded copyright protection not simply as a
limit on the manner in which expressive works may be
used. They also saw copyright as an “engine of free ex-
pression[:] By establishing a marketable right to the use of
——————
28 The dissent suggests that the “utilitarian view of copyrigh[t]” em-
braced by Jefferson, Madison, and our case law sets us apart from
continental Europe and inhibits us from harmonizing our copyright
laws with those of countries in the civil-law tradition. See post, at 5–6,
22. For persuasive refutation of that suggestion, see Austin, Does the
Copyright Clause Mandate Isolationism? 26 Colum. J. L. & Arts 17, 59
(2002) (cautioning against “an isolationist reading of the Copyright
Clause that is in tension with . . . America’s international copyright
relations over the last hundred or so years”).
24 GOLAN v. HOLDER
Opinion of the Court
one’s expression, copyright supplies the economic incentive
to create and disseminate ideas.” Ibid. (quoting Harper &
Row, 471 U. S., at 558 (internal quotation marks omit-
ted)); see id., at 546 (“rights conferred by copyright are
designed to assure contributors to the store of knowledge a
fair return for their labors”).
We then described the “traditional contours” of copy-
right protection, i.e., the “idea/expression dichotomy” and
the “fair use” defense.29 Both are recognized in our juris-
prudence as “built-in First Amendment accommodations.”
Eldred, 537 U. S., at 219; see Harper & Row, 471 U. S., at
560 (First Amendment protections are “embodied in the
Copyright Act’s distinction between copyrightable expres-
sion and uncopyrightable facts and ideas,” and in the
“latitude for scholarship and comment” safeguarded by the
fair use defense).
The idea/expression dichotomy is codified at 17 U. S. C.
§102(b): “In no case does copyright protec[t] . . . any idea,
procedure, process, system, method of operation, concept,
principle, or discovery . . . described, explained, illustrat-
ed, or embodied in [the copyrighted] work.” “Due to this
[idea/expression] distinction, every idea, theory, and fact
in a copyrighted work becomes instantly available for
public exploitation at the moment of publication”; the
author’s expression alone gains copyright protection.
Eldred, 537 U. S., at 219; see Harper & Row, 471 U. S., at
556 (“idea/expression dichotomy strike[s] a definitional
balance between the First Amendment and the Copyright
Act by permitting free communication of facts while still
protecting an author’s expression” (internal quotation
——————
29 On the initial appeal in this case, the Tenth Circuit gave an uncon-
fined reading to our reference in Eldred to “traditional contours of
copyright.” 501 F. 3d, at 1187–1196. That reading was incorrect, as we
here clarify.
Cite as: 565 U. S. ____ (2012) 25
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marks omitted)).
The second “traditional contour,” the fair use defense, is
codified at 17 U. S. C. §107: “[T]he fair use of a copyright-
ed work, including such use by reproduction in copies . . . ,
for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copy-
right.” This limitation on exclusivity “allows the public to
use not only facts and ideas contained in a copyrighted
work, but also [the author’s] expression itself in certain
circumstances.” Eldred, 537 U. S., at 219; see id., at 220(“fair use defense affords considerable latitude for scholar-
ship and comment, . . . even for parody” (internal quota-
tion marks omitted)).
Given the “speech-protective purposes and safeguards”
embraced by copyright law, see id., at 219, we concluded
in Eldred that there was no call for the heightened review
petitioners sought in that case.30 We reach the same
conclusion here.31 Section 514 leaves undisturbed the
“idea/expression” distinction and the “fair use” defense.
Moreover, Congress adopted measures to ease the transi-
tion from a national scheme to an international copyright
regime: It deferred the date from which enforcement runs,
and it cushioned the impact of restoration on “reliance
parties” who exploited foreign works denied protection
before §514 took effect. See supra, at 10–11 (describing 17
U. S. C. §104A(c), (d), and (h)). See also Eldred, 537 U. S.,
at 220 (describing supplemental allowances and exemp-
——————
30 See Eldred, 537 U. S., at 221 (“Protection of [an author’s original
expression from unrestricted exploitation] does not raise the free speech
concerns present when the government compels or burdens the com-
munication of particular facts or ideas.”).
31Focusing narrowly on the specific problem of orphan works,
the dissent overlooks these principal protections against “the
dissemination-restricting harms of copyright.” Post, at 14.
26 GOLAN v. HOLDER
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tions available to certain users to mitigate the CTEA’s
impact).
B
Petitioners attempt to distinguish their challenge from
the one turned away in Eldred. First Amendment inter-
ests of a higher order are at stake here, petitioners say,
because they—unlike their counterparts in Eldred—
enjoyed “vested rights” in works that had already entered
the public domain. The limited rights they retain under
copyright law’s “built-in safeguards” are, in their view, no
substitute for the unlimited use they enjoyed before §514’s
enactment. Nor, petitioners urge, does §514’s “unprece-
dented” foray into the public domain possess the historical
pedigree that supported the term extension at issue in
Eldred. Brief for Petitioners 42–43.
However spun, these contentions depend on an argu-
ment we considered and rejected above, namely, that the
Constitution renders the public domain largely untouch-
able by Congress. Petitioners here attempt to achieve
under the banner of the First Amendment what they could
not win under the Copyright Clause: On their view of the
Copyright Clause, the public domain is inviolable; as they
read the First Amendment, the public domain is policed
through heightened judicial scrutiny of Congress’ means
and ends. As we have already shown, see supra, at 13–19,
the text of the Copyright Clause and the historical record
scarcely establish that “once a work enters the public
domain,” Congress cannot permit anyone—“not even the
creator—[to] copyright it,” 501 F. 3d, at 1184. And noth-
ing in the historical record, congressional practice, or our
own jurisprudence warrants exceptional First Amendment
solicitude for copyrighted works that were once in the
Cite as: 565 U. S. ____ (2012) 27
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public domain.32 Neither this challenge nor that raised in
Eldred, we stress, allege Congress transgressed a gener-
ally applicable First Amendment prohibition; we are not
faced, for example, with copyright protection that hinges
on the author’s viewpoint.
The Tenth Circuit’s initial opinion determined that
petitioners marshaled a stronger First Amendment chal-
lenge than did their predecessors in Eldred, who never
“possessed unfettered access to any of the works at issue.”
501 F. 3d, at 1193. See also id., at 1194 (“[O]nce the works
at issue became free for anyone to copy, [petitioners] had
vested First Amendment interests in the expressions,
[thus] §514’s interference with [petitioners’] rights is
subject to First Amendment scrutiny.”). As petitioners put
it in this Court, Congress impermissibly revoked their
right to exploit foreign works that “belonged to them” once
the works were in the public domain. Brief for Petitioners
44–45.
To copyright lawyers, the “vested rights” formulation
——————
32 “[R]equir[ing]works that have already fallen into the public do-
main to stay there” might, as the dissent asserts, supply an “easily
administrable standard.” Post, at 14. However attractive this bright-
line rule might be, it is not a rule rooted in the constitutional text or
history. Nor can it fairly be gleaned from our case law. The dissent
cites three decisions to document its assertion that “this Court has
assumed the particular importance of public domain material in rough-
ly analogous circumstances.” Post, at 15. The dictum in Graham v.
John Deere Co. of Kansas City, 383 U. S. 1, 6 (1966), noted earlier, did
not treat the public domain as a constitutional limit—certainly not
under the rubric of the First Amendment. See supra, at 19. The other
two decisions the dissent cites considered whether the federal Patent
Act preempted a state trade-secret law, Kewanee Oil Co. v. Bicron
Corp., 416 U. S. 470, 479–484 (1974), and whether the freedom of the
press shielded reporters from liability for publishing material drawn
from public court documents, Cox Broadcasting Corp. v. Cohn, 420 U. S.
469, 495–497 (1975). Neither decision remotely ascribed constitutional
significance to a work’s public domain status.
28 GOLAN v. HOLDER
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might sound exactly backwards: Rights typically vest at
the outset of copyright protection, in an author or
rightholder. See, e.g., 17 U. S. C. §201(a) (“Copyright in a
work protected . . . vests initially in the author . . . .”).
Once the term of protection ends, the works do not revest
in any rightholder. Instead, the works simply lapse into
the public domain. See, e.g., Berne, Art. 18(1), 828
U. N. T. S., at 251 (“This Convention shall apply to all
works which . . . have not yet fallen into the public do-
main . . . .”). Anyone has free access to the public domain,
but no one, after the copyright term has expired, acquires
ownership rights in the once-protected works.
Congress recurrently adjusts copyright law to protect
categories of works once outside the law’s compass. For
example, Congress broke new ground when it extended
copyright protection to foreign works in 1891, Act of Mar.
3, §13, 26 Stat. 1110; to dramatic works in 1856, Act of
Aug. 18, 11 Stat. 138; to photographs and photographic
negatives in 1865, Act of Mar. 3, §1, 13 Stat. 540; to mo-
tion pictures in 1912, Act of Aug. 24, 37 Stat. 488; to fixed
sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat.
391; and to architectural works in 1990, Architectural
Works Copyright Protection Act, 104 Stat. 5133. And on
several occasions, as recounted above, Congress protected
works previously in the public domain, hence freely usable
by the public. See supra, at 15–19. If Congress could
grant protection to these works without hazarding height-
ened First Amendment scrutiny, then what free speech
principle disarms it from protecting works prematurely
cast into the public domain for reasons antithetical to the
Berne Convention? 33
——————
33 It was the Fifth Amendment’s Takings Clause—not the First
Amendment—that Congress apparently perceived to be a potential
check on its authority to protect works then freely available to the
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Section 514, we add, does not impose a blanket prohibi-
tion on public access. Petitioners protest that fair use and
the idea/expression dichotomy “are plainly inadequate to
protect the speech and expression rights that Section 514
took from petitioners, or . . . the public”—that is, “the
unrestricted right to perform, copy, teach and distribute
the entire work, for any reason.” Brief for Petitioners 46–
47. “Playing a few bars of a Shostakovich symphony,”
petitioners observe, “is no substitute for performing the
entire work.” Id., at 47.34
But Congress has not put petitioners in this bind. The
question here, as in Eldred, is whether would-be users
must pay for their desired use of the author’s expression,
or else limit their exploitation to “fair use” of that work.
Prokofiev’s Peter and the Wolf could once be performed
free of charge; after §514 the right to perform it must be
obtained in the marketplace. This is the same market-
place, of course, that exists for the music of Prokofiev’s
U. S. contemporaries: works of Copland and Bernstein, for
example, that enjoy copyright protection, but nevertheless
appear regularly in the programs of U. S. concertgoers.
Before we joined Berne, domestic works and some for-
eign works were protected under U. S. statutes and bilat-
eral international agreements, while other foreign works
were available at an artificially low (because royalty-free)
——————
public. See URAA Joint Hearing 3 (statement of Rep. Hughes); id., at
121 (app. to statement of Lehman, Commerce Dept.); id., at 141 (state-
ment of Shapiro, USTR); id., at 145 (statement of Christopher Schroe-
der, DOJ). The reliance-party protections supplied by §514, see supra,
at 10–11, were meant to address such concerns. See URAA Joint
Hearing 148–149 (prepared statement of Schroeder).
34 Because Shostakovich was a pre-1973 Russian composer, his works
were not protected in the United States. See U. S. Copyright Office,
Circular No. 38A: The International Copyright Relations of the United
States 9, 11, n. 2 (2010) (copyright relations between the Soviet Union
and the United States date to 1973).
30 GOLAN v. HOLDER
Opinion of the Court
cost. By fully implementing Berne, Congress ensured that
most works, whether foreign or domestic, would be gov-
erned by the same legal regime. The phenomenon to
which Congress responded is not new: Distortions of the
same order occurred with greater frequency—and to the
detriment of both foreign and domestic authors—when,
before 1891, foreign works were excluded entirely from
U. S. copyright protection. See Kampelman, The United
States and International Copyright, 41 Am. J. Int’l L. 406,
413 (1947) (“American readers were less inclined to read
the novels of Cooper or Hawthorne for a dollar when they
could buy a novel of Scott or Dickens for a quarter.”).
Section 514 continued the trend toward a harmonized
copyright regime by placing foreign works in the position
they would have occupied if the current regime had been
in effect when those works were created and first pub-
lished. Authors once deprived of protection are spared the
continuing effects of that initial deprivation; §514 gives
them nothing more than the benefit of their labors during
whatever time remains before the normal copyright term
expires.35
Unlike petitioners, the dissent makes much of the so-
called “orphan works” problem. See post, at 11–14, 23–24.
We readily acknowledge the difficulties would-be users of
copyrightable materials may face in identifying or locating
copyright owners. See generally U. S. Copyright Office,
Report on Orphan Works 21–40 (2006). But as the dissent
concedes, see post, at 13, this difficulty is hardly peculiar
to works restored under §514. It similarly afflicts, for
——————
35 Persistently deploring “ ‘restored copyright’ protection [because it]
removes material from the public domain,” post, at 14, the dissent does
not pause to consider when and why the material came to be lodged in
that domain. Most of the works affected by §514 got there after a term
of zero or a term cut short by failure to observe U. S. formalities. See
supra, at 9.
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instance, U. S. libraries that attempt to catalogue U. S.
books. See post, at 12. See also Brief for American Li-
brary Association et al. as Amici Curiae 22 (Section 514
“exacerbated,” but did not create, the problem of orphan
works); U. S. Copyright Office, supra, at 41–44 (tracing
orphan-works problem to Congress’ elimination of formali-
ties, commencing with the 1976 Copyright Act).36
Nor is this a matter appropriate for judicial, as opposed
to legislative, resolution. Cf. Authors Guild v. Google, Inc.,
770 F. Supp. 2d 666, 677–678 (SDNY 2011) (rejecting
proposed “Google Books” class settlement because, inter
alia, “the establishment of a mechanism for exploiting
unclaimed books is a matter more suited for Congress
than this Court” (citing Eldred, 537 U. S., at 212)). In-
deed, the host of policy and logistical questions identified
by the dissent speak for themselves. Post, at 12. Despite
“longstanding efforts,” see Authors Guild, 770 F. Supp. 2d,
at 678 (quoting statement of Marybeth Peters), Congress
has not yet passed ameliorative orphan-works legislation
of the sort enacted by other Berne members, see, e.g.,
Canada Copyright Act, R. S. C., 1985, c. C–42, §77 (au-
thorizing Copyright Board to license use of orphan works
by persons unable, after making reasonable efforts, to
locate the copyright owner). Heretofore, no one has sug-
gested that the orphan-works issue should be addressed
through our implementation of Berne, rather than
through overarching legislation of the sort proposed in
Congress and cited by the dissent. See post, at 23–24;
U. S. Copyright Office, Legal Issues in Mass Digitization
25–29 (2011) (discussing recent legislative efforts). Our
unstinting adherence to Berne may add impetus to calls
——————
36 The pervasive problem of copyright piracy, noted post, at 13, like-
wise is scarcely limited to protected foreign works formerly in the
public domain.
32 GOLAN v. HOLDER
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for the enactment of such legislation. But resistance to
Berne’s prescriptions surely is not a necessary or proper
response to the pervasive question, what should Congress
do about orphan works.
IV
Congress determined that U. S. interests were best
served by our full participation in the dominant system of
international copyright protection. Those interests in-
clude ensuring exemplary compliance with our interna-
tional obligations, securing greater protection for U. S.
authors abroad, and remedying unequal treatment of
foreign authors. The judgment §514 expresses lies well
within the ken of the political branches. It is our obliga-
tion, of course, to determine whether the action Congress
took, wise or not, encounters any constitutional shoal. For
the reasons stated, we are satisfied it does not. The judg-
ment of the Court of Appeals for the Tenth Circuit is
therefore
Affirmed.
JUSTICE KAGAN took no part in the consideration or
decision of this case.
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APPENDIX
Title 17 U. S. C. §104A provides:
“(a) AUTOMATIC PROTECTION AND TERM.—
“(1) TERM.—
“(A) Copyright subsists, in accordance with this sec-
tion, in restored works, and vests automatically on the
date of restoration.
“(B) Any work in which copyright is restored under
this section shall subsist for the remainder of the term of
copyright that the work would have otherwise been grant-
ed in the United States if the work never entered the
public domain in the United States.
“(2) EXCEPTION.—Any work in which the copyright was
ever owned or administered by the Alien Property Custo-
dian and in which the restored copyright would be owned
by a government or instrumentality thereof, is not a re-
stored work.
“(b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored
work vests initially in the author or initial rightholder of
the work as determined by the law of the source country of
the work.
“(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED
COPYRIGHT AGAINST RELIANCE PARTIES.—On or after the
date of restoration, any person who owns a copyright in a
restored work or an exclusive right therein may file with
the Copyright Office a notice of intent to enforce that
person’s copyright or exclusive right or may serve such a
notice directly on a reliance party. Acceptance of a notice
by the Copyright Office is effective as to any reliance
parties but shall not create a presumption of the validity
of any of the facts stated therein. Service on a reliance
party is effective as to that reliance party and any other
reliance parties with actual knowledge of such service and
of the contents of that notice.
“(d) REMEDIES FOR INFRINGEMENT OF RESTORED
COPYRIGHTS.—
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“(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS
IN THE ABSENCE OF A RELIANCE PARTY.—As against any
party who is not a reliance party, the remedies provided in
chapter 5 of this title shall be available on or after the
date of restoration of a restored copyright with respect
to an act of infringement of the restored copyright that is
commenced on or after the date of restoration.
“(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS
AS AGAINST RELIANCE PARTIES.—As against a reliance
party, except to the extent provided in paragraphs (3) and
(4), the remedies provided in chapter 5 of this title shall be
available, with respect to an act of infringement of a re-
stored copyright, on or after the date of restoration of
the restored copyright if the requirements of either of the
following subparagraphs are met:
“(A)(i) The owner of the restored copyright (or such
owner’s agent) or the owner of an exclusive right therein
(or such owner’s agent) files with the Copyright Office,
during the 24-month period beginning on the date of res-
toration, a notice of intent to enforce the restored copy-
right; and
“(ii)(I) the act of infringement commenced after the
end of the 12-month period beginning on the date of publi-
cation of the notice in the Federal Register;
“(II) the act of infringement commenced before the
end of the 12-month period described in subclause (I) and
continued after the end of that 12-month period, in which
case remedies shall be available only for infringement
occurring after the end of that 12-month period; or
“(III) copies or phonorecords of a work in which
copyright has been restored under this section are made
after publication of the notice of intent in the Federal
Register.
“(B)(i) The owner of the restored copyright (or such
owner’s agent) or the owner of an exclusive right therein
(or such owner’s agent) serves upon a reliance party a
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notice of intent to enforce a restored copyright; and
“(ii)(I) the act of infringement commenced after
the end of the 12-month period beginning on the date the
notice of intent is received;
“(II) the act of infringement commenced before the
end of the 12-month period described in subclause (I) and
continued after the end of that 12-month period, in which
case remedies shall be available only for the infringement
occurring after the end of that 12-month period; or
“(III) copies or phonorecords of a work in which
copyright has been restored under this section are made
after receipt of the notice of intent.
“In the event that notice is provided under both subpara-
graphs (A) and (B), the 12-month period referred to in
such subparagraphs shall run from the earlier of publica-
tion or service of notice.
“(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a
derivative work that is based upon a restored work and is
created—
“(i) before the date of the enactment of the Uruguay
Round Agreements Act, if the source country of the re-
stored work is an eligible country on such date, or
“(ii) before the date on which the source country of
the restored work becomes an eligible country, if that
country is not an eligible country on such date of
enactment,
“a reliance party may continue to exploit that derivative
work for the duration of the restored copyright if the
reliance party pays to the owner of the restored copyright
reasonable compensation for conduct which would be
subject to a remedy for infringement but for the provisions
of this paragraph.
“(B) In the absence of an agreement between the parties,
the amount of such compensation shall be determined by
an action in United States district court, and shall reflect
any harm to the actual or potential market for or value of
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the restored work from the reliance party’s continued
exploitation of the work, as well as compensation for the
relative contributions of expression of the author of the
restored work and the reliance party to the derivative
work.
“(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE
PARTIES.—For purposes of section 412, in the case of reli-
ance parties, infringement shall be deemed to have com-
menced before registration when acts which would have
constituted infringement had the restored work been
subject to copyright were commenced before the date of
restoration.
“(e) NOTICES OF INTENT TO ENFORCE A RESTORED
COPYRIGHT.—
“(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT
OFFICE.—(A)(i) A notice of intent filed with the Copyright
Office to enforce a restored copyright shall be signed by
the owner of the restored copyright or the owner of an
exclusive right therein, who files the notice under subsec-
tion (d)(2)(A)(i) (hereafter in this paragraph referred to as
the “owner”), or by the owner’s agent, shall identify the
title of the restored work, and shall include an English
translation of the title and any other alternative titles
known to the owner by which the restored work may be
identified, and an address and telephone number at which
the owner may be contacted. If the notice is signed by an
agent, the agency relationship must have been constituted
in a writing signed by the owner before the filing of the
notice. The Copyright Office may specifically require in
regulations other information to be included in the notice,
but failure to provide such other information shall not
invalidate the notice or be a basis for refusal to list the
restored work in the Federal Register.
“(ii) If a work in which copyright is restored has no
formal title, it shall be described in the notice of intent in
detail sufficient to identify it.
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“(iii) Minor errors or omissions may be corrected by
further notice at any time after the notice of intent is filed.
Notices of corrections for such minor errors or omissions
shall be accepted after the period established in subsection
(d)(2)(A)(i). Notices shall be published in the Federal
Register pursuant to subparagraph (B).
“(B)(i) The Register of Copyrights shall publish in the
Federal Register, commencing not later than 4 months
after the date of restoration for a particular nation and
every 4 months thereafter for a period of 2 years, lists
identifying restored works and the ownership thereof if
a notice of intent to enforce a restored copyright has been
filed.
“(ii) Not less than 1 list containing all notices of intent
to enforce shall be maintained in the Public Information
Office of the Copyright Office and shall be available for
public inspection and copying during regular business
hours pursuant to sections 705 and 708.
“(C) The Register of Copyrights is authorized to fix
reasonable fees based on the costs of receipt, processing,
recording, and publication of notices of intent to enforce a
restored copyright and corrections thereto.
“(D)(i) Not later than 90 days before the date the
Agreement on Trade-Related Aspects of Intellectual Prop-
erty referred to in section 101(d)(15) of the Uruguay
Round Agreements Act enters into force with respect to
the United States, the Copyright Office shall issue and
publish in the Federal Register regulations governing the
filing under this subsection of notices of intent to enforce a
restored copyright.
“(ii) Such regulations shall permit owners of restored
copyrights to file simultaneously for registration of the
restored copyright.
“(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.—
(A) Notices of intent to enforce a restored copyright may be
served on a reliance party at any time after the date of
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restoration of the restored copyright.
“(B) Notices of intent to enforce a restored copyright
served on a reliance party shall be signed by the owner or
the owner’s agent, shall identify the restored work and the
work in which the restored work is used, if any, in detail
sufficient to identify them, and shall include an English
translation of the title, any other alternative titles known
to the owner by which the work may be identified, the use
or uses to which the owner objects, and an address and
telephone number at which the reliance party may contact
the owner. If the notice is signed by an agent, the agency
relationship must have been constituted in writing and
signed by the owner before service of the notice.
“(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any
material false statement knowingly made with respect to
any restored copyright identified in any notice of intent
shall make void all claims and assertions made with
respect to such restored copyright.
“(f) IMMUNITY FROM WARRANTY AND RELATED
LIABILITY.—
“(1) IN GENERAL.—Any person who warrants, promises,
or guarantees that a work does not violate an exclusive
right granted in section 106 shall not be liable for legal,
equitable, arbitral, or administrative relief if the war-
ranty, promise, or guarantee is breached by virtue of the
restoration of copyright under this section, if such warran-
ty, promise, or guarantee is made before January 1, 1995.
“(2) PERFORMANCES.—No person shall be required to
perform any act if such performance is made infringing by
virtue of the restoration of copyright under the provisions
of this section, if the obligation to perform was undertaken
before January 1, 1995.
“(g) PROCLAMATION OF COPYRIGHT RESTORATION.—
Whenever the President finds that a particular foreign
nation extends, to works by authors who are nationals
or domiciliaries of the United States, restored copyright
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protection on substantially the same basis as provided
under this section, the President may by proclamation
extend restored protection provided under this section to
any work—
“(1) of which one or more of the authors is, on the date of
first publication, a national, domiciliary, or sovereign
authority of that nation; or
“(2) which was first published in that nation.
“The President may revise, suspend, or revoke any such
proclamation or impose any conditions or limitations on
protection under such a proclamation.
“(h) DEFINITIONS.—For purposes of this section and sec-
tion 109(a):
“(1) The term “date of adherence or proclamation”
means the earlier of the date on which a foreign nation
which, as of the date the WTO Agreement enters into force
with respect to the United States, is not a nation adhering
to the Berne Convention or a WTO member country,
becomes—
“(A) a nation adhering to the Berne Convention;
“(B) a WTO member country;
“(C) a nation adhering to the WIPO Copyright Treaty;
“(D) a nation adhering to the WIPO Performances and
Phonograms Treaty; or
“(E) subject to a Presidential proclamation under
subsection (g).
“(2) The “date of restoration” of a restored copyright is—
“(A) January 1, 1996, if the source country of the
restored work is a nation adhering to the Berne Conven-
tion or a WTO member country on such date, or
“(B) the date of adherence or proclamation, in the case
of any other source country of the restored work.
“(3) The term “eligible country” means a nation, other
than the United States, that—
“(A) becomes a WTO member country after the date of
the enactment of the Uruguay Round Agreements Act;
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“(B) on such date of enactment is, or after such date
of enactment becomes, a nation adhering to the Berne
Convention;
“(C) adheres to the WIPO Copyright Treaty;
“(D) adheres to the WIPO Performances and Phono-
grams Treaty; or
“(E) after such date of enactment becomes subject to a
proclamation under subsection (g).
“(4) The term “reliance party” means any person who—
“(A) with respect to a particular work, engages in acts,
before the source country of that work becomes an eligible
country, which would have violated section 106 if the
restored work had been subject to copyright protection,
and who, after the source country becomes an eligible
country, continues to engage in such acts;
“(B) before the source country of a particular work
becomes an eligible country, makes or acquires 1 or more
copies or phonorecords of that work; or
“(C) as the result of the sale or other disposition of a
derivative work covered under subsection (d)(3), or signifi-
cant assets of a person described in subparagraph (A) or
(B), is a successor, assignee, or licensee of that person.
“(5) The term “restored copyright” means copyright in a
restored work under this section.
“(6) The term “restored work” means an original work of
authorship that—
“(A) is protected under subsection (a);
“(B) is not in the public domain in its source country
through expiration of term of protection;
“(C) is in the public domain in the United States due
to—
“(i) noncompliance with formalities imposed at any
time by United States copyright law, including failure of
renewal, lack of proper notice, or failure to comply with
any manufacturing requirements;
“(ii) lack of subject matter protection in the case of
Cite as: 565 U. S. ____ (2012) 41
Opinion
Appendix of the of
to opinion Court
the Court
sound recordings fixed before February 15, 1972; or
“(iii) lack of national eligibility;
“(D) has at least one author or rightholder who was, at
the time the work was created, a national or domiciliary of
an eligible country, and if published, was first published in
an eligible country and not published in the United States
during the 30-day period following publication in such
eligible country; and
“(E) if the source country for the work is an eligible
country solely by virtue of its adherence to the WIPO
Performances and Phonograms Treaty, is a sound
recording.
“(7) The term “rightholder” means the person—
“(A) who, with respect to a sound recording, first fixes
a sound recording with authorization, or
“(B) who has acquired rights from the person de-
scribed in subparagraph (A) by means of any conveyance
or by operation of law.
“(8) The “source country” of a restored work is—
“(A) a nation other than the United States
“(B) in the case of an unpublished work—
“(i) the eligible country in which the author or
rightholder is a national or domiciliary, or, if a restored
work has more than 1 author or rightholder, of which the
majority of foreign authors or rightholders are nationals or
domiciliaries; or
“(ii) if the majority of authors or rightholders are
not foreign, the nation other than the United States which
has the most significant contacts with the work; and
“(C) in the case of a published work—
“(i) the eligible country in which the work is first
published, or
“(ii) if the restored work is published on the same
day in 2 or more eligible countries, the eligible country
which has the most significant contacts with the work.”
Cite as: 565 U. S. ____ (2012) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–545
_________________
LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[January 18, 2012]
JUSTICE BREYER, with whom JUSTICE ALITO joins,
dissenting.
In order “[t]o promote the Progress of Science” (by which
term the Founders meant “learning” or “knowledge”),
the Constitution’s Copyright Clause grants Congress the
power to “secur[e] for limited Times to Authors . . . the
exclusive Right to their . . . Writings.” Art. I, §8, cl. 8.
This “exclusive Right” allows its holder to charge a fee to
those who wish to use a copyrighted work, and the ability
to charge that fee encourages the production of new mate­
rial. In this sense, a copyright is, in Macaulay’s words, a
“tax on readers for the purpose of giving a bounty to writ­
ers”—a bounty designed to encourage new production. As
the Court said in Eldred, “ ‘[t]he economic philosophy
behind the [Copyright] [C]lause . . . is the conviction that
encouragement of individual effort by personal gain is the
best way to advance public welfare through the talents of
authors and inventors.’ ” Eldred v. Ashcroft, 537 U. S. 186,
212, n. 18 (2003) (quoting Mazer v. Stein, 347 U. S. 201,
219 (1954)). See T. Macaulay, Speeches on Copyright 25
(E. Miller ed. 1913); E. Walterscheid, The Nature of the
Intellectual Property Clause: A Study in Historical Per­
spective 125–126 (2002) (hereinafter Walterscheid).
The statute before us, however, does not encourage
anyone to produce a single new work. By definition, it
bestows monetary rewards only on owners of old works—
2 GOLAN v. HOLDER
BREYER, J., dissenting
works that have already been created and already are in
the American public domain. At the same time, the stat­
ute inhibits the dissemination of those works, foreign
works published abroad after 1923, of which there are
many millions, including films, works of art, innumerable
photographs, and, of course, books—books that (in the
absence of the statute) would assume their rightful places
in computer-accessible databases, spreading knowledge
throughout the world. See infra, at 10–13. In my view,
the Copyright Clause does not authorize Congress to enact
this statute. And I consequently dissent.
I
The possibility of eliciting new production is, and always
has been, an essential precondition for American copyright
protection. The Constitution’s words, “exclusive Right,”
“limited Times,” “Progress of Science,” viewed through the
lens of history underscore the legal significance of what
the Court in Eldred referred to as the “economic philoso­
phy behind the Copyright Clause.” 537 U. S., at 212, n. 18(brackets omitted). That philosophy understands copy­
right’s grants of limited monopoly privileges to authors as
private benefits that are conferred for a public reason—to
elicit new creation.
Yet, as the Founders recognized, monopoly is a two­
edged sword. On the one hand, it can encourage produc­
tion of new works. In the absence of copyright protection,
anyone might freely copy the products of an author’s
creative labor, appropriating the benefits without incur­
ring the nonrepeatable costs of creation, thereby deterring
authors from exerting themselves in the first place. On
the other hand, copyright tends to restrict the dissemina­
tion (and use) of works once produced either because the
absence of competition translates directly into higher
consumer prices or because the need to secure copying
permission sometimes imposes administrative costs that
make it difficult for potential users of a copyrighted work
to find its owner and strike a bargain. See W. Landes &
Cite as: 565 U. S. ____ (2012) 3
BREYER, J., dissenting
R. Posner, The Economic Structure of Intellectual Proper­
ty Law 68–70, 213–214 (2003). Consequently, the original
British copyright statute, the Constitution’s Framers, and
our case law all have recognized copyright’s resulting
and necessary call for balance.
At the time the Framers wrote the Constitution, they
were well aware of Britain’s 18th-century copyright stat­
ute, the Statute of Anne, 8 Anne, ch. 19 (1710), and they
were aware of the legal struggles that produced it. That
statute sought in part to control, and to limit, preexisting
monopolies that had emerged in the book trade as a result
of the Crown’s having previously granted special privileg­
es to royal favorites. The Crown, for example, had char­
tered the Stationers’ Company, permitting it to regulate
and to censor works on the government’s behalf. The
Stationers had thereby acquired control over the disposi­
tion of copies of published works, from which emerged
the Stationers’ copyright—a right conferred on company
members, not authors, that was deemed to exist in perpe­
tuity. See L. Patterson, Copyright in Historical Perspec­
tive 1–16, 114–150 (1968) (hereinafter Patterson); Walter­
scheid 59–65; Gómez-Arostegui, The Untold Story of the
First Copyright Suit Under the Statute of Anne in 1710,
25 Berkeley Tech. L. J. 1247, 1250–1256 (2010).
To prevent the continuation of the booksellers’ monopoly
and to encourage authors to write new books, Parliament
enacted the Statute of Anne. It bore the title: “An Act for
the Encouragement of Learning, by vesting the Copies of
printed Books in the Authors or Purchasers of such Cop­
ies, during the Times therein mentioned.” And it granted
authors (not publishers) and their assignees the “sole
Right and Liberty of printing” their works for limited
periods of time in order to encourage them “to compose and
write useful Books.” 8 Anne, ch. 19, §1 (emphasis added).
As one historian has put it, “[t]he central plank of the . . .
Act was . . . a cultural quid pro quo. To encourage
4 GOLAN v. HOLDER
BREYER, J., dissenting
‘learned Men to compose and write useful Books’ the state
would provide a guaranteed, if temporally limited, right
to print and reprint those works.” Deazley, The Myth of
Copyright at Common Law, 62 Camb. L. J. 106, 108
(2003). At first, in their attempts to minimize their losses,
the booksellers argued that authors had a perpetual com­
mon-law copyright in their works deriving from their
natural rights as creators. But the House of Lords ulti­
mately held in Donaldson v. Beckett, 1 Eng. Rep. 837
(1774), that the Statute of Anne had transformed any such
perpetual common-law copyright into a copyright of a
limited term designed to serve the public interest. Patter­
son 15–16, 153, 158–179; Deazley, supra, at 114–126.
Many early colonial copyright statutes, patterned after
the Statute of Anne, also stated that copyright’s objective
was to encourage authors to produce new works and
thereby improve learning. See U. S. Copyright Office,
Copyright Enactments, Bulletin No. 3, pp. 1, 6, 10, 11, 17,
19 (rev. 1963) (statutes of Connecticut, New Jersey, Penn­
sylvania, South Carolina, Georgia, and New York); Wal­
terscheid 74–75; Bracha, The Adventures of the Statute of
Anne in the Land of Unlimited Possibilities: The Life of a
Legal Transplant, 25 Berkeley Tech. L. J. 1427, 1444–
1450 (2010).
At least, that was the predominant view expressed to,
or by, the Founders. Patterson 93. Thomas Jefferson, for
example, initially expressed great uncertainty as to
whether the Constitution should authorize the grant of
copyrights and patents at all, writing that “the benefit
even of limited monopolies is too doubtful” to warrant
anything other than their “suppression.” Letter from
Thomas Jefferson to James Madison (July 31, 1788), in 13
Papers of Thomas Jefferson 440, 443 (J. Boyd ed. 1956).
James Madison also thought that “Monopolies . . . are
justly classed among the greatest nu[i]sances in Govern­
ment.” Letter from James Madison to Thomas Jefferson
Cite as: 565 U. S. ____ (2012) 5
BREYER, J., dissenting
(Oct. 17, 1788), in 14 id., at 16, 21 (J. Boyd ed. 1958). But
he argued that “in certain cases” such as copyright, mo­
nopolies should “be granted” (“with caution, and guarded
with strictness agst abuse”) to serve as “compensation
for a benefit actually gained to the community . . . which
the owner might otherwise withhold from public use.” Mo­
nopolies. Perpetuities. Corporations. Ecclesiastical En­
dowments. in J. Madison, Writings 756 (J. Rakove ed.
1999) (emphasis added). Jefferson eventually came to
agree with Madison, supporting a limited conferral of
monopoly rights but only “as an encouragement to men to
pursue ideas which may produce utility.” Letter from
Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in 6
Papers of Thomas Jefferson, at 379, 383 (J. Looney ed.
2009) (emphasis added).
This utilitarian view of copyrights and patents, em­
braced by Jefferson and Madison, stands in contrast to the
“natural rights” view underlying much of continental
European copyright law—a view that the English
booksellers promoted in an effort to limit their losses
following the enactment of the Statute of Anne and that in
part motivated the enactment of some of the colonial
statutes. Patterson 158–179, 183–192. Premised on the
idea that an author or inventor has an inherent right to
the fruits of his labor, it mythically stems from a legend­
ary 6th-century statement of King Diarmed “ ‘to every cow
her calf, and accordingly to every book its copy.’ ” A.
Birrell, Seven Lectures on the Law and History of Copy­
right in Books 42 (1899). That view, though perhaps
reflected in the Court’s opinion, ante, at 30, runs contrary
to the more utilitarian views that influenced the writing of
our own Constitution’s Copyright Clause. See S. Rick­
etson, The Berne Convention for the Protection of Literary
and Artistic Works: 1886–1986, pp. 5–6 (1987) (The first
French copyright laws “placed authors’ rights on a more
elevated basis than the Act of Anne had done,” on the
6 GOLAN v. HOLDER
BREYER, J., dissenting
understanding that they were “simply according formal
recognition to what was already inherent in the ‘very
nature of things’ ”); S. Stewart, International Copyright
and Neighbouring Rights 6–7 (2d ed. 1989) (describing the
European system of droit d’auteur).
This utilitarian understanding of the Copyright Clause
has long been reflected in the Court’s case law. In Mazer,
for example, the Court refers to copyright as embodying
the view that “encouragement of individual effort by per-
sonal gain is the best way to advance public welfare
through the talents of authors and inventors.” 347 U. S.,
at 219 (emphasis added). In Twentieth Century Music
Corp. v. Aiken, 422 U. S. 151 (1975), the Court says that
underlying copyright is the understanding that “[c]reative
work is to be encouraged and rewarded, but private moti-
vation must ultimately serve the cause of promoting broad
public availability of literature, music, and the other arts.”
Id., at 156 (emphasis added). And in Sony Corp. of Amer-
ica v. Universal City Studios, Inc., 464 U. S. 417 (1984), the
Court, speaking of both copyrights and patents, points out
that the “monopoly privileges that Congress may author­
ize are . . . [not] primarily designed to provide a special
private benefit. Rather, the limited grant is a means by
which an important public purpose may be achieved. It is
intended to motivate the creative activity of authors . . . by
the provision of a special reward.” Id., at 429 (emphasis
added); see also, e.g., Graham v. John Deere Co. of Kansas
City, 383 U. S. 1, 6 (1966) (The “constitutional command
. . . ‘[to] promote the Progress [of Science]’ . . . is the stand-
ard expressed in the Constitution and it may not be ig­
nored”); Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932)
(“The sole interest of the United States . . . lie[s] in the
general benefits derived by the public from the labors of
authors”).
Congress has expressed similar views in congressional
Reports on copyright legislation. Thus, for example, an
Cite as: 565 U. S. ____ (2012) 7
BREYER, J., dissenting
1892 House Report states:
“The object to be attained and the reason for the con­
stitutional grant of power are imbedded in the grant
itself. They are ‘to promote the progress of science
and the useful arts.’ . . . [The Clause says] nothing . . .
about any desire or purpose to secure to the author or
inventor his ‘natural right to his property.’ ” H. R.
Rep. No. 1494, 52d Cong., 1st Sess., 2.
Similarly, the congressional authors of the landmark 1909
Copyright Act wrote:
“The Constitution . . . provides that Congress shall
have the power to grant [copyrights] . . . [n]ot primari­
ly for the benefit of the author, . . . but because the
policy is believed to be for the benefit of the great body
of people, in that it will stimulate writing and inven-
tion, to give some bonus to authors and inventors.”
H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).
And they went on to say:
“Congress must consider . . . two questions: First, how
much will the legislation stimulate the producer and
so benefit the public; and, second, how much will the
monopoly granted be detrimental to the public? The
granting of such exclusive rights, under the proper
terms and conditions, confers a benefit upon the pub­
lic that outweighs the evils of the temporary monop­
oly.” Ibid.The upshot is that text, history, and precedent demon­
strate that the Copyright Clause places great value on the
power of copyright to elicit new production. Congress in
particular cases may determine that copyright’s ability to
do so outweighs any concomitant high prices, administra­
tive costs, and restrictions on dissemination. And when it
does so, we must respect its judgment. See Eldred, 537
8 GOLAN v. HOLDER
BREYER, J., dissenting
U. S., at 222. But does the Clause empower Congress to
enact a statute that withdraws works from the public
domain, brings about higher prices and costs, and in doing
so seriously restricts dissemination, particularly to those
who need it for scholarly, educational, or cultural pur-
poses—all without providing any additional incentive for
the production of new material? That is the question
before us. And, as I have said, I believe the answer is no.
Congress in this statute has exceeded what are, under any
plausible reading of the Copyright Clause, its permissible
limits.
II
The Act before us says that it “restores” American copy­
right to a set of works, which, for the most part, did not
previously enjoy American copyright protection. These
works had fallen into America’s public domain, but as of
the “restoration” date, they had not yet fallen into the pub­
lic domain of the foreign country where they originated.
The statute covers works originating almost anywhere
outside the United States. See 17 U. S. C. §104A(h)(3)
(setting out eligibility criteria); U. S. Copyright Office,
Circular No. 38A: International Copyright Relations of the
United States (2010). The relevant set of works consists
primarily of works originating abroad that did not obtain,
or at some point lost, American copyright protection be­
cause (1) the author failed to comply with applicable
American copyright formalities (such as notice or renew­
al), or (2) the nation in which they were first published
then lacked copyright relations with the United States, or
(3) they are sound recordings fixed before February 15,
1972. §104A(h)(6)(C). A work must also satisfy other
technical requirements: It must have had a rightholder
who was a national or resident of an eligible country on
the day it was created; and it cannot have been published
in the United States within 30 days of its first publication.
Cite as: 565 U. S. ____ (2012) 9
BREYER, J., dissenting
§104A(h)(6)(D). The Act grants these works a copyright
that expires at the time it would have expired had the
author obtained a full American copyright term starting
from the date on which the work was first published (in
the foreign country). §104A(a)(1)(B).
The Act mainly applies to works first published abroad
between 1923 and 1989. It does not apply significantly to
earlier works because any work published before 1921
would have fallen into the public domain before 1977 had
it received a full American copyright term, while works
published between 1921 and 1923 obtained a “restored”
copyright that expired before the 1998 Sonny Bono Copy­
right Term Extension Act, and so could have lasted two
years at most. See Tit. I, §101, 90 Stat. 2574 (extending
the copyright term of works still under copyright in 1977
to 75 years); 17 U. S. C. §304(b) (extending the copyright
term of works still under copyright in 1998 to 95 years). It
has less impact on more recent works because in 1989
the United States became a Berne member, abolished the
copyright notice requirement, and thenceforth provided
prospective copyright protection throughout the Berne
Union. See R. Schechter & J. Thomas, Intellectual Prop­
erty: The Law of Copyrights, Patents and Trademarks 75–
77 (2003); §7, 102 Stat. 2857–2858 (codified as amended at
17 U. S. C. §§401–406).
Despite these temporal limitations, the Act covers vast
numbers of works. The first category includes works
published in countries that had copyright relations with
the United States during this time period, such as most of
Western Europe and Latin America, Australia, and Japan,
see Circular No. 38A, supra, at 2–10, whose authors did
not satisfy American copyright formalities, perhaps be­
cause the author, who may not have sought an American
copyright, published the book abroad without proper
American notice, or perhaps because the author obtained a
valid American copyright but failed to renew it.
10 GOLAN v. HOLDER
BREYER, J., dissenting
The second category (works that entered the public
domain due to a lack of copyright relations) includes,
among others, all works published in Russia and other
countries of the former Soviet Union before May 1973
(when the U. S. S. R. joined the Universal Copyright Con­
vention (UCC)), all works published in the People’s Repub­
lic of China before March 1992 (when bilateral copyright
relations between the People’s Republic and the United
States were first established), all South Korean works
published before October 1987 (when South Korea joined
the UCC), and all Egyptian and Turkish works published
before March 1989 (when the United States joined Berne).
See id., at 2–10, and 11, nn. 2, 5, 6.
The third category covers all sound recordings from
eligible foreign countries published after February 15,
1972. The practical significance of federal copyright resto­
ration to this category of works is less clear, since these
works received, and continued to receive, copyright protec­
tion under state law. See 17 U. S. C. §301(c).
Apparently there are no precise figures about the num­
ber of works the Act affects, but in 1996 the then-Register
of Copyrights, Marybeth Peters, thought that they “proba­
bly number in the millions.” The Year in Review: Accom­
plishments and Objectives of the U. S. Copyright Office, 7
Ford. Intellectual Property Media & Entertainment L. J.
25, 31 (1996).
A
The provision before us takes works from the public
domain, at least as of January 1, 1996. See §104A(h)(2)(A)
(setting “restoration” dates). It then restricts the dissemi­
nation of those works in two ways.
First, “restored copyright” holders can now charge fees
for works that consumers previously used for free. The
price of a score of Shostakovich’s Preludes and Fugues Op.
87, for example, has risen by a multiple of seven. Brief for
Cite as: 565 U. S. ____ (2012) 11
BREYER, J., dissenting
Conductors Guild et al. as Amici Curiae 11. And, as the
Court recognizes, an orchestra that once could perform
“Peter and the Wolf . . . free of charge” will now have to
buy the “right to perform it . . . in the marketplace.” Ante,
at 29. But for the case of certain “derivative” works,
§104A(d)(3), the “restored copyright” holder, like other
copyright holders, can charge what the market will bear.
If a school orchestra or other nonprofit organization can­
not afford the new charges, so be it. They will have to do
without—aggravating the already serious problem of
cultural education in the United States. See Brief for
Conductors Guild et al. as Amici Curiae 4–5, 7–8 (describ­
ing the inability of many orchestras to pay for the rental of
sheet music covered by “restored copyright[s]”).
Second, and at least as important, the statute creates
administrative costs, such as the costs of determining
whether a work is the subject of a “restored copyright,”
searching for a “restored copyright” holder, and negotiat­
ing a fee. Congress has tried to ease the administrative
burden of contacting copyright holders and negotiating
prices for those whom the statute calls “reliance part[ies],”
namely those who previously had used such works when
they were freely available in the public domain.
§104A(h)(4). But Congress has done nothing to ease the
administrative burden of securing permission from copy­
right owners that is placed upon those who want to use a
work that they did not previously use, and this is a partic­
ular problem when it comes to “orphan works”—older and
more obscure works with minimal commercial value that
have copyright owners who are difficult or impossible to
track down. Unusually high administrative costs threaten
to limit severely the distribution and use of those works—
works which, despite their characteristic lack of economic
value, can prove culturally invaluable.
There are millions of such works. For example, accord­
ing to European Union figures, there are 13 million or­
12 GOLAN v. HOLDER
BREYER, J., dissenting
phan books in the European Union (13% of the total
number of books in-copyright there), 225,000 orphan films in
European film archives, and 17 million orphan photo­
graphs in United Kingdom museums. A. Vuopala, As­
sessment of the Orphan works issue and Costs for Rights
Clearance 19, 25 (2010), online at http://ec.europa.eu/
information_society/activities/digital_libraries/doc/reports_
orphan/anna_report.pdf (all Internet materials as visited
Jan. 13, 2012, and available in Clerk of Court’s case file).
How is a university, a film collector, a musician, a data­
base compiler, or a scholar now to obtain permission to
use any such lesser known foreign work previously in
the American public domain? Consider the questions that
any such individual, group, or institution usually must
answer: Is the work eligible for restoration under the
statute? If so, who now holds the copyright—the author?
an heir? a publisher? an association? a long-lost cousin?
Whom must we contact? What is the address? Suppose
no one answers? How do we conduct a negotiation?
To find answers to these, and similar questions, costs
money. The cost to the University of Michigan and the
Institute of Museum and Library Services, for example, to
determine the copyright status of books contained in the
HathiTrust Digital Library that were published in the
United States from 1923 to 1963 will exceed $1 million.
Brief for American Library Assn. et al. as Amici Curiae 15.
It is consequently not surprising to learn that the Los
Angeles Public Library has been unable to make its collec­
tion of Mexican folk music publicly available because of
problems locating copyright owners, that a Jewish cultural
organization has abandoned similar efforts to make avail­
able Jewish cultural music and other materials, or that
film preservers, museums, universities, scholars, database
compilers, and others report that the administrative costs
associated with trying to locate foreign copyright owners
have forced them to curtail their cultural, scholarly, or
Cite as: 565 U. S. ____ (2012) 13
BREYER, J., dissenting
other work-preserving efforts. See, e.g., Comments of the
Library Copyright Alliance in Response to the U. S. Copy­
right Office’s Inquiry on Orphan Works 5 (Mar. 25, 2005),
online at http://www.arl.org/bm~doc/lcacomment0305.pdf;
Comments of Creative Commons and Save The Music
in Response to the U. S. Copyright Office’s Inquiry on
Orphan Works (Mar. 25, 2005), online at http://
www.copyright.gov/orphan/comments/OW0643-STM-
CreativeCommons.pdf; General Agreement on Tariffs and
Trade (GATT): Intellectual Property Provisions, Joint
Hearing before the Subcommittee on Intellectual Property
and Judicial Administration of the House Committee on
the Judiciary and the Subcommittee on Patents, Copy­
rights and Trademarks of the Senate Committee on the
Judiciary, 103d Cong., 2d Sess., 131, 273 (1994) (hereinaf­
ter Joint Hearing) (statement of Larry Urbanski, Chair­
man of the Fairness in Copyright Coalition and President
of Moviecraft, Inc.); Brief for American Library Assn. et al.
as Amici Curiae 6–23; Brief for Creative Commons Corp.
as Amicus Curiae 7–8; Brief for Project Petrucci, LLC, as
Amicus Curiae 10–11.
These high administrative costs can prove counterpro­
ductive in another way. They will tempt some potential
users to “steal” or “pirate” works rather than do without.
And piracy often begets piracy, breeding the destructive
habit of taking copyrighted works without paying for
them, even where payment is possible. Such habits
ignore the critical role copyright plays in the creation
of new works, while reflecting a false belief that new
creation appears by magic without thought or hope of
compensation.
B
I recognize that ordinary copyright protection also
comes accompanied with dissemination-restricting royalty
charges and administrative costs. But here the re­
14 GOLAN v. HOLDER
BREYER, J., dissenting
strictions work special harm. For one thing, the foreign
location of restored works means higher than ordinary
administrative costs. For another, the statute’s technical
requirements make it very difficult to establish whether a
work has had its copyright restored by the statute. Gard,
In the Trenches with §104A: An Evaluation of the Parties’
Arguments in Golan v. Holder as It Heads to the Supreme
Court, 64 Vand. L. Rev. En Banc 199, 216–220 (2011)
(describing difficulties encountered in compiling the in­
formation necessary to create an online tool to determine
whether the statute applies in any given case).
Worst of all, “restored copyright” protection removes
material from the public domain. In doing so, it reverses
the payment expectations of those who used, or intended
to use, works that they thought belonged to them. Were
Congress to act similarly with respect to well-established
property rights, the problem would be obvious. This stat­
ute analogously restricts, and thereby diminishes, Ameri­
cans’ preexisting freedom to use formerly public domain
material in their expressive activities.
Thus, while the majority correctly observes that the
dissemination-restricting harms of copyright normally
present problems appropriate for legislation to resolve,
ante, at 31–32, the question is whether the Copyright
Clause permits Congress seriously to exacerbate such a
problem by taking works out of the public domain without
a countervailing benefit. This question is appropriate for
judicial resolution. Indeed, unlike Eldred where the Court
had to decide a complicated line-drawing question—when
is a copyright term too long?—here an easily administra­
ble standard is available—a standard that would require
works that have already fallen into the public domain to
stay there.
The several, just mentioned features of the present
statute are important, for they distinguish it from other
copyright laws. By removing material from the public
Cite as: 565 U. S. ____ (2012) 15
BREYER, J., dissenting
domain, the statute, in literal terms, “abridges” a preexist­
ing freedom to speak. In practical terms, members of the
public might well have decided what to say, as well as
when and how to say it, in part by reviewing with a view
to repeating, expression that they reasonably believed
was, or would be, freely available. Given these speech
implications, it is not surprising that Congress has long
sought to protect public domain material when revising
the copyright laws. See infra, at 19 (listing instances).
And this Court has assumed the particular importance of
public domain material in roughly analogous circumstanc­
es. See Graham, 383 U. S., at 6 (“Congress may not au­
thorize the issuance of patents whose effects are to remove
existent knowledge from the public domain”); Kewanee Oil
Co. v. Bicron Corp., 416 U. S. 470, 484 (1974) (trade secret
protection is not incompatible with “policy that matter
once in the public domain must remain in the public do­
main”); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469,
496 (1975) (First Amendment prohibits sanctioning press
for publishing material disclosed in public court docu­
ments); see also Dastar Corp. v. Twentieth Century Fox
Film Corp., 539 U. S. 23, 33 (2003) (“The right to copy . . .
once a copyright has expired . . . passes to the public”
(internal quotation marks omitted)).
Moreover, whereas forward-looking copyright laws tend
to benefit those whose identities are not yet known (the
writer who has not yet written a book, the musician who
has not yet composed a song), when a copyright law is
primarily backward looking the risk is greater that Con­
gress is trying to help known beneficiaries at the expense
of badly organized unknown users who find it difficult to
argue and present their case to Congress. In Eldred, I
thought this problem was severe. See generally 537 U. S.,
at 243–266 (dissenting opinion). And in light of the fact
that Congress, with one minor exception, heard testimony
only from the representatives of existing copyright hold­
16 GOLAN v. HOLDER
BREYER, J., dissenting
ers, who hoped that passage of the statute would enable
them to benefit from reciprocal treatment of American
authors abroad, infra, at 21, I cannot say that even here
the problem, while much diminished, was nonexistent.
I agree with the majority that, in doing so, this statute
does not discriminate among speakers based on their
viewpoints or subject matter. Ante, at 27. But such con­
siderations do not exhaust potential First Amendment
problems. Cf. Sorrell v. IMS Health Inc., 564 U. S. ___,
___ (2011) (slip op., at 8) (finding First Amendment prob­
lem in statute that prohibits drug manufacturers from
using publicly available prescriber-identifying information
in their marketing efforts in part because it “disfavor[ed]
specific speakers”); Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 659 (1994) (“Regulations that discrim­
inate among media, or among different speakers within a
single medium, often present serious First Amendment
concerns”).
Taken together, these speech-related harms (e.g., re­
stricting use of previously available material; reversing
payment expectations; rewarding rent-seekers at the
public’s expense) at least show the presence of a First
Amendment interest. And that is enough. For present
purposes, I need not decide whether the harms to that
interest show a violation of the First Amendment. I need
only point to the importance of interpreting the Constitu­
tion as a single document—a document that we should not
read as setting the Copyright Clause and the First
Amendment at cross-purposes. Nor need I advocate the
application here of strict or specially heightened review. I
need only find that the First Amendment interest is im­
portant enough to require courts to scrutinize with some
care the reasons claimed to justify the Act in order to
determine whether they constitute reasonable copyright­
related justifications for the serious harms, including
speech-related harms, which the Act seems likely to
Cite as: 565 U. S. ____ (2012) 17
BREYER, J., dissenting
impose.
C
1
This statute does not serve copyright’s traditional public
ends, namely the creation of monetary awards that “moti­
vate the creative activity of authors,” Sony, 464 U. S.,
at 429, “encourag[e] individual effort,” Mazer, 347 U. S.,
at 219, and thereby “serve the cause of promoting broad
public availability of literature, music, and the other arts,”
Twentieth Century Music, 422 U. S., at 156. The statute
grants its “restored copyright[s]” only to works already
produced. It provides no monetary incentive to produce
anything new. Unlike other American copyright statutes
from the time of the Founders onwards, including the
statute at issue in Eldred, it lacks any significant copy­
right-related quid pro quo.
The majority seeks to avoid this awkward fact by refer­
ring to past congressional practice that mostly suggests
that Congress may provide new or increased protection
both to newly created and to previously created, works.
Ante, at 16, 18; Act of May 31, 1790, §1, 1 Stat. 124 (con­
ferring its new federal copyright on new works as well as
old); Act of July 3, 1832, §3, 4 Stat. 559 (authorizing new
patents for past and future inventors who inadvertently
failed to comply with applicable statutory formalities);
McClurg v. Kingsland, 1 How. 202 (1843) (applying an act
deeming a past or future inventor’s patent valid despite it
being briefly used by, for example, the inventor’s employ­
er). I do not dispute that copyright power. Insofar as such
a statute does the former, i.e., extends protection to newly
created material, it embodies copyright’s traditional justi­
fication—eliciting new production. And I do not doubt
that Congress may then also include existing works within
the scope of, say, increased protection for equitable and
administrative reasons. See Eldred, 537 U. S. at 204,
18 GOLAN v. HOLDER
BREYER, J., dissenting
214–215 (describing equitable reasons for applying newly
extended copyright terms to future and existing copyrights
alike). The statute before us, however, does not directly
elicit any new production. Compare id., at 204–208; (ma­
jority opinion) (noting that statute’s extended term would
apply to newly created material, and finding that the
determination of the likelihood of its eliciting new produc­
tion in practice was a matter for Congress to determine),
with id., at 243–267 (BREYER, J., dissenting) (expressing
the view that there is little likelihood, in practice, that the
statute would elicit new material). See also Walterscheid
219 (the 1790 Congress likely thought it was substituting
federal protection for preexisting state common-law pro­
tections); Maher, Copyright Term, Retrospective Exten­
sion, and the Copyright Law of 1790 in Historical Context,
49 J. Copyright Soc. USA 1021, 1023–1024, and n. 8
(2002) (numerical estimate suggesting that 1790 Act
removed only a small number of books from public
domain).
The other statutes to which the majority refers are
private bills, statutes retroactively granting protection in
wartime, or the like. Ante, at 16–19; Act of Feb. 19, 1849,
ch. 57, 9 Stat. 763 (Levi Corson); Act of June 23, 1874, ch.
534, 18 Stat., pt. 3, p. 618 (Tod Helmuth); Act of Feb. 17,
1898, ch. 29, 30 Stat. 1396 (Judson Jones); Act of Dec. 18,
1919, ch. 11, 41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55
Stat. 732; see also Evans v. Jordan, 9 Cranch 199 (1815)
(upholding a private bill restoring patent protection to a
flour mill). But special circumstances, like wars, hurri­
canes, earthquakes, and other disasters, prevent the
realization in practice of a reasonable expectation of secur­
ing or maintaining a preexisting right. Private bills are
designed to provide special exceptions for comparable
equitable reasons. See also Act of Mar. 3, 1893, ch. 215,
27 Stat. 743 (similar, as far as I can tell). To find in these
laws an important analogy to the present law, which for
Cite as: 565 U. S. ____ (2012) 19
BREYER, J., dissenting
the most part covers works that the author did not expect
to protect in America (and often did not particularly want
to protect), seems somewhat farfetched.
In fact, Congressional practice shows the contrary. It
consists of a virtually unbroken string of legislation pre­
venting the withdrawal of works from the public domain.
See, e.g., Berne Convention Implementation Act of 1988,
§12, 102 Stat. 2860 (the Act “does not provide copyright
protection for any work that is in the public domain in the
United States”); Copyright Act of 1976, Tit. I, §101, 90
Stat. 2573 (declining to extend copyright protection to any
work that is in the public domain prior to the Act taking
effect); Copyright Act of 1909, §7, 35 Stat. 1077 (“[N]o
copyright shall subsist in the original text of any work
which is in the public domain, or in any work which was
published in this country or any foreign country prior to
the going into effect of this Act and has not been already
copyrighted in the United States”); Act to Amend the
Several Acts Respecting Copy Rights §16, 4 Stat. 439 (the
Act “shall not extend to any copyright heretofore secured,
the term of which has already expired”); see also H. R.
Rep. No. 1742, 87th Cong., 2d Sess., 3 (1962) (expressing
concern that because “it is not possible to revive expired
terms of copyright, it seems to the committee to be desira­
ble to suspend further expiration of copyright for a period
long enough to enable the working out of remaining obsta­
cles to the overall revision of the copyright law”).
2
The majority makes several other arguments. First, it
argues that the Clause does not require the “creation of at
least one new work,” ante, at 20, but may instead “promote
the Progress of Science” in other ways. And it specifically
mentions the “dissemination of existing and future works”
as determinative here. Ante, at 20–23, and n. 25. The
industry experts to whom the majority refers argue that
20 GOLAN v. HOLDER
BREYER, J., dissenting
copyright protection of already existing works can help,
say, music publishers or film distributers raise prices,
produce extra profits and consequently lead them to pub­
lish or distribute works they might otherwise have ig­
nored. But ordinarily a copyright—since it is a monopoly
on copying—restricts dissemination of a work once pro­
duced compared to a competitive market. And simply
making the industry richer does not mean that the indus­
try, when it makes an ordinary forward-looking economic
calculus, will distribute works not previously distributed.
The industry experts might mean that temporary extra
profits will lead them to invest in the development of a
market, say, by advertising. But this kind of argument,
which can be made by distributers of all sorts of goods,
ranging from kiwi fruit to Swedish furniture, has little
if anything to do with the nonrepeatable costs of initial
creation, which is the special concern of copyright protec­
tion. See supra, at 2–3.
Moreover, the argument proves too much. It is the kind
of argument that the Stationers’ Company might well
have made and which the British Parliament rejected. Cf.
Patterson 154–155 (describing failed booksellers’ bill
seeking protection from foreign competition through an
extension of the copyright term). It is the kind of argu­
ment that could justify a legislature’s withdrawing from
the public domain the works, say, of Hawthorne or of Swift
or for that matter the King James Bible in order to en­
courage further publication of those works; and, it could
even more easily justify similar action in the case of lesser
known early works, perhaps those of the Venerable Bede.
The Court has not, to my knowledge, previously accepted
such a rationale—a rationale well removed from the spe­
cial economic circumstances that surround the nonrepeat­
able costs of the initial creation of a “Writing.” Supra, at
2. And I fear that doing so would read the Copyright
Clause as if it were a blank check made out in favor of
Cite as: 565 U. S. ____ (2012) 21
BREYER, J., dissenting
those who are not themselves creators.
It is not surprising that the copyright holders’ repre­
sentatives who appeared before Congress did not empha­
size this argument. (With one minor exception only those
representatives appeared, see generally Joint Hearing; the
Copyright Office did not testify, id., at 239.) Rather, they
focused on the Berne Convention itself. By that time,
Congress had already protected all new works of Berne
members. But it had not provided additional protection to
preexisting foreign works that were then in the American
public domain. Industry witnesses testified that with­
drawing such works from the American public domain
would permit foreign copyright owners to charge American
consumers more for their products; and that, as a result,
the United States would be able to persuade foreign coun­
tries to allow American holders of preexisting copyrights
to charge foreign customers more money for their prod­
ucts. See id., at 241 (statement of Eric Smith, Executive
Director and General Counsel, International Intellectual
Property Alliance) (“[F]ailure to [comply with Article 18]
will . . . undermine the ability of the United States to press
other countries to implement the same sort of protection in
their implementing legislation currently pending in many
legislatures around the globe”); id., at 253 (statement of
Matt Gerson, Vice President for Congressional Affairs,
Motion Picture Assn. of America) (similar). See also id., at
85 (statement of Xavier Becerra, House Judiciary Commit­
tee member) (“[R]etroactivity . . . is probably the best way
to ensure that some of our older American works, any­
thing from Motown, to ‘Star Trek,’ to ‘The Hardy Boys’ get
the protection in some of these emerging foreign markets.
It is important to ensure that countries no longer use our
U. S. law as an excuse for not extending retroactive copy­
right protections to some of our own works”). But see
id., at 272–279 (statement of Larry Urbanski, Chairman
of the Fairness in Copyright Coalition and President of
22 GOLAN v. HOLDER
BREYER, J., dissenting
Moviecraft Inc.) (testifying against restoration on grounds
similar to those set out, supra, at 10–13).
This argument, whatever its intrinsic merits, is an ar­
gument that directly concerns a private benefit: how to
obtain more money from the sales of existing products. It
is not an argument about a public benefit, such as how to
promote or to protect the creative process.
Third, the majority points out that the statute “gives
[authors] nothing more than the benefit of their labors
during whatever time remains before the normal copyright
term expires.” Ante, at 30. But insofar as it suggests that
copyright should in general help authors obtain greater
monetary rewards than needed to elicit new works, it rests
upon primarily European, but not American, copyright
concepts. See supra, at 5–6.
Fourth, the majority argues that this statutory provi­
sion is necessary to fulfill our Berne Convention obliga­
tions. Ante, at 4–8. The Treaty, in Article 18, says that
the “Convention shall apply to all works which, at the
moment of its coming into force [i.e., 1989 in the case of
the United States] have not yet fallen into the public
domain in the country of origin through the expiry of the
term of protection.” Berne Convention for the Protection
of Literary and Artistic Works, Art. 18(1), Sept. 9, 1886, as
revised at Stockholm on July 14, 1967, 828 U. N. T. S. 221,
251. The majority and Government say that this means
we must protect the foreign works at issue here. And
since the Berne Convention, taken as a whole, provides
incentives for the creation of new works, I am willing to
speculate, for argument’s sake, that the statute might
indirectly encourage production of new works by making
the United States’ place in the international copyright
regime more secure.
Still, I cannot find this argument sufficient to save the
statute. For one thing, this is a dilemma of the Govern­
ment’s own making. The United States obtained the
Cite as: 565 U. S. ____ (2012) 23
BREYER, J., dissenting
benefits of Berne for many years despite its failure to
enact a statute implementing Article 18. But in 1994, the
United States and other nations signed the Agreement on
Trade-Related Aspects of Intellectual Property Rights,
which enabled signatories to use World Trade Organiza­
tion dispute resolution mechanisms to complain about
other members’ Berne Convention violations. And at that
time the Government, although it successfully secured
reservations protecting other special features of American
copyright law, made no effort to secure a reservation
permitting the United States to keep some or all restored
works in the American public domain. Indeed, it made no
effort to do so despite the fact that Article 18 explicitly
authorizes countries to negotiate exceptions to the Arti­
cle’s retroactivity principle. See Art. 18(3), ibid. (“The
application of [the retroactivity] principle shall be subject
to any provisions contained in special conventions to that
effect existing or to be concluded between countries of the
Union” (emphasis added)); Gervais, Golan v. Holder: A
Look at the Constraints Imposed by the Berne Conven­
tion, 64 Vand. L. Rev. En Banc 147, 151–152 (2011); Gard,
64 Vand. L. Rev. En Banc, at 206.
For another thing, the Convention does not require
Congress to enact a statute that causes so much damage
to public domain material. Article 18(3) also states that
“the respective countries shall determine, each in so far as
it is concerned, the conditions of application of this princi-
ple.” 18 U. N. T. S., at 251 (emphasis added). Congress
could have alleviated many of the costs that the statute
imposes by, for example, creating forms of compulsory
licensing, requiring “restored copyright” holders to provide
necessary administrative information as a condition of
protection, or insisting upon “reasonable royalties.” Cf.
S. 2913, 110th Cong., 2d Sess. (2008) (legislation that
would have limited judicial remedies against users of
orphan works); H. R. 5889, 110th Cong., 2d Sess. (2008)
24 GOLAN v. HOLDER
BREYER, J., dissenting
(House version of same); American Society of Compos-
ers, Authors and Publishers, http://www.ascap.com/
licensing/termsdefined.aspx (society of music copyright
owners offering blanket licenses that give users the unlim­
ited right to perform any of its members’ songs for a fixed
fee, thus reducing negotiation and enforcement costs).
To say this is not to criticize the Convention or our
joining it. Rather, it is to argue that the other branches of
Government should have tried to follow the Convention
and in particular its provisions offering compliance flexi­
bility. The fact that the statute has significant First
Amendment costs is relevant in this respect, for that
Amendment ordinarily requires courts to evaluate less
restrictive, alternative possibilities. Doing so here, reveals
that neither Congress nor the Executive took advantage of
less-restrictive methods of compliance that the Convention
itself provides. And that fact means that the Convention
cannot provide the statute with a constitutionally suffi­
cient justification that is otherwise lacking.
III
The fact that, by withdrawing material from the public
domain, the statute inhibits an important preexisting flow
of information is sufficient, when combined with the other
features of the statute that I have discussed, to convince
me that the Copyright Clause, interpreted in the light of
the First Amendment, does not authorize Congress to
enact this statute.
I respectfully dissent from the Court’s contrary
conclusion.