BY JENNETTE WISER
Golan v. Holder before the Supreme Court
In 1994, Congress enacted the “copyright restoration” provision or Section 514 of the Uruguay Round Agreements Act to carry out U.S. trade obligations after the formation of the World Trade Organization. The “copyright restoration” provision effectively granted new copyrights to certain foreign works that had previously been in the public domain (some dating back for decades). Of these foreign works were well-known orchestral pieces like Prokofiev’s Peter and the Wolf, Stravinsky’s Rite of Spring, and Shostakovich’s String Quartets, paintings by Picasso and drawings by M.C. Escher.
An action was brought questioning the constitutionality of Section 514 in the District Court of Colorado in 2005. The district court held that the provision was unconstitutional. The government appealed the order reversing the district court’s holding finding that Congress had the authority under the Copyright Clause in the constitution to enact the provision and that it did not violate any First Amendment rights. On March 7, 2011 the Supreme Court granted certiorari.
Mr. Lawrence Golan is a professor and conductor for the Lamont Symphony Orchestra at the University of Denver and a party to this case. Due to the new copyrights granted to these works, educators like Golan have had to stop using and teaching them to students. It has become too expensive for universities and other educational institutions to obtain the rights and licenses to use the works that were once free to everyone. As a result, children are being deprived of the opportunity to learn and enjoy the now copyrighted works. According to The Conductors Guild, “70% of orchestral conductors polled stated that, because of copyright restoration, they had to forego performing works that used to be in the public domain, but are now subject to restored copyrights.”
In layman’s terms, the constitutional issue before the Court is whether or not “Congress [can] restore copyright protection to a work whose copyright protection had previously expired and was therefore in the public domain?” The copyright law is unique in that it creates a balance between the rights of the content owner and the rights of those who use and enjoy the content. The law places just as much importance on promoting free access to creative works as protecting ownership rights in the works. A robust public domain is central to this balance and also central to our artistic community. The Court will not only have to consider the legal questions posed, but also the public policy implications of taking works from the public domain and subsequent from the enjoyment of the people.
Briefs and other court documents pertaining to the case are available on SCOTUSblog at http://www.scotusblog.com/case-files/cases/golan-v-holder/. Follow along and see what happens!
 See Golan v. Holder, 609 F.3d 1076 (10th Cir. 2010) cert. granted, 131 S. Ct. 1600 (2011).
 See 17 U.S.C. 104A. The US joined the Berne Convention for the Protection of Literary and Artistic Works in 1989. Pursuant to the Convention each member country is “to provide the same copyright protections to authors in other member countries that it provides to its own authors.” Golan, 609 F.3d at 1080 “However, when the [US] joined the Berne Convention, the implementing legislation did not extend copyrights to any foreign works that were already in the public domain”. President Clinton signed the copyright restoration provision to comply with the Berne Convention along with the then newly enacted TRIPS agreement.
 Golan v. Gonzales, 2005 WL 914754 (D. Colo. Apr. 20, 2005) aff’d in part, remanded in part, 501 F.3d 1179 (10th Cir. 2007).
 Holder, 609 F.3d at1095.
 Lawrence Golan, D.M.A., University of Denver, http://www.du.edu/ahss/schools/lamont/faculty/conducting/golan-lawrence.html (last visited Sept. 27, 2011, 12:00 PM).
 Edward Lee, Golan v. Holder: Supreme Court to Review Copyrighting Works in Public Domain, Huffington Post (Mar. 9, 2011, 11:50 AM), http://www.huffingtonpost.com/edward-lee/supreme-court-to-review-copyright-public-domain_b_832886.html.
 Golan v. Holder, SCOTUSblog, http://www.scotusblog.com/case-files/cases/golan-v-holder/ (last visited Sept. 27, 2011, 12:00 PM).