6
Sep/07

"Golan v Gonzales — How The First Amendment Limits Copyright Law"


Balkinization: Golan v. Gonzales — How The First Amendment Limits Copyright Law

The Tenth Circuit has handed down a very important copyright case, Golan v. Gonzales, which holds that section 514 of the Uruguay Round Agreements Act– which implements the Berne Convention on copyrights– may violate the First Amendment because it takes some materials out of the public domain and makes them copyrighted. Relying on language in Eldred v. Reno, the court held that the URAA violated the First Amendment because it altered the “traditional contours of copyright law.” It pointed out that the tradition in the United States has been for works to be created, copyrighted and then revert to the public domain. It also pointed out that traditionally Congress has rarely ever restored copyrights for public domain works, and then only in emergency situations where, for example, war prevented the authors from complying with copyright formalities. The court concluded that neither the idea/expression distinction nor the fair use defense ameliorated the fact that work that was free for anyone to use was now locked up in fresh copyrights. Hence it remanded for further determination of whether the URAA is content neutral or content based in order to apply the appropriate level of scrutiny.

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