Golan v Holder: Redrawing the Boundaries of the Public Domain

For many Internet users, the year started off inauspiciously. SOPA, the Stop Online Piracy Act, was introduced in the United States House of Representatives. It swiftly put websites out of business and people all over the world protested online and on the streets. The United States Supreme Court, rather quietly, came out with their decision in Golan v Holder [No. 10-545] at the same time as all of the hoopla.

Golan v Holder, as I summarized in this earlier post, was a case heard by the Court in late 2011 regarding the constitutionality of the Uruguay Round of Agreements; Section 514 of the Agreement would put foreign works that had been in the public sphere back under copyright protection in the United States. Copyright supporters scored a decisive victory, as six of the eight judges on the Supreme Court ruled that the Uruguay Round of Agreements was constitutional.


The outcome in Golan v. Holder redrew the boundaries of the public domain in the United States and likely in other jurisdictions around the world. At the heart is a law enacted to carry out an international convention. The law primarily concerns foreign works published between 1923 and 1989, works that had eluded copyright protection under American law. They include films by Alfred Hitchcock, books by Virginia Woolf and Symphonies by Stravinsky.

Led by Justice Ginsburg, the majority held that the public domain was not “a category of constitutional significance.” They essentially rejected arguments based on the First Amendment and the Constitution’s copyright clause. For Justice Ginsburg, our First Amendment right to freedom of speech was protected by the fair use doctrine.

The earlier case, Eldred v Ashcroft, which allowed Congress to extend copyright terms while they were still in force, aided the majority in grounding their arguments. Even though this law would grant protection to works that had never enjoyed protection in the United States, the majority stated that the guiding constitutional principles were the same. Lastly, the majority of the court skirted around the theory of copyright that argues that protection incentivizes creation; copyright could be expanded even if there was no incentive to create new works, according to most members of the bench.

“Harmonization” of Copyright Law Internationally

 What the majority of the bench did underline is the “harmony” that needed to exist between American law and international law. The decision would help to ensure that  “most works, whether foreign or domestic, would be governed by the same legal regime.” With the Uruguay Round, the U.S. would stand shoulder-to-shoulder with other nations that had long been parties to the Berne Convention, which generated one of first international copyright treaties in history. Essentially, for works that had obtained copyrights in other countries but not in the U.S., the 1994 law would guarantee that, for the remainder of the term of their protection in their home country, these copyright owners would enjoy protection under U.S. law too. The expectation is that American copyrights will be respected more readily abroad.

Justice Ginsburg offers an illustrative example. Suppose two composers, both of whom wrote symphonies, died at around the same time. The foreign-born composer is not likely to hold copyright protection in the United States for his/her works. This is precisely the case with Sergei Prokofiev’s “Peter and the Wolf,” which the appellant mentions explicitly in his oral arguments. “Peter and the Wolf” had been in the public domain in the United States for decades. However, works by Prokofiev’s American contemporaries, such as Aaron Copland and Leonard Bernstein, have enjoyed copyright protection all that time.

The 1994 law would put “Peter and the Wolf” on the same footing, granting it new copyright protection. Even though Justice Breyer’s complaint that this decision would flout the theory of copyright that draws legal protection and the incentive to create together, Justice Ginsburg’s example highlights the importance of this decision within a broader framework. That framework is one that is bolstered by fairness.

A Return to the Beginning

One reason that this case was not subjected to media scrutiny is that the decision and the reasoning were what we expected; it was also not polarizing politically. It can be argued, however, that Justice Ginsburg’s majority decision does not investigate the public domain thoroughly. The weakness of this decision comes from the theoretical underpinning of the public domain in the United States and other former English colonies.

Intellectual property law scholars, such as Abraham Drassinower from the University of Toronto and James Boyle from Duke University, have argued for a more robust understanding of the public domain within the common law tradition. This is because, for years, the common law has relegated the public domain to the margins. In the 1796 case of Millar v Taylor in England, the idea of the public domain was first posited in law: “[W]hen an author prints and publishes his work, he lays it entirely open to the public, as much as when an owner of a piece of land lays it open into the highway” [98 Eng. Rep. at 234].

Two hundred and some years later, we seem to conceive of the public domain in similar ways – as a space that is created after authors have carved out spaces for their protected works. Justice Ginsburg, stating that the public domain was not “constitutional[ly] significant,” supports this line of reasoning. If Justice Ginsburg and the majority had not started with the premise that the public domain is the byproduct of the intellectual property regime, then one wonders how the case may have been decided differently…

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