Best of TOC 2012

Chapter 2. Digital Publishing and the Legal Landscape

Public Domain Here, Under Copyright There

By Jenn Webb

On March 7, 2011, the US Supreme Court agreed to hear the Golan v. Holder copyright case. In a post for Duke’s Scholarly Communications website, Kevin Smith — who also wrote about the original case in 2009 — provided a nice background summary:

Basically the problem is that a law passed to reconcile U.S. copyright law with the international treaties that we agreed to in 1988 and after had the effect of removing some works from the public domain. This had virtually never happened before; until the Uruguay Round Agreements Act (URAA) of 1994, things that were in the public domain stayed there, and users could safely depend on their availability for use and reuse. For a subset of materials, however, the URAA changed the rules pretty dramatically and, according to the petitioners, in a way that conflicts with the basic protection of free speech found in the US Constitution.

According to the official case file, the court agreed to hear the case on two issues: “(1) Does the Progress Clause of the United States Constitution, Article I, B’ 8, cl. 8, prohibit Congress from taking works out of the public domain? (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?”

In an email interview, Dana Newman, a transactional and intellectual ...