Monday, October 1, 2012

Copyright And The Constitution

This is not legal advice. Leave audio feedback at (512) 686-6329.

Unlike Doug, I see Golan v. Holder as primarily a copyright decision. Because §104A, the chapter that allows foreign holders of copyright to restore their works to copyright , was created to comply with international treaties it cannot be viewed in an American vacuum. The primary reason this should not be viewed primarily as a treaty case is because §104A is a law passed by Congress not a treaty made by the president and ratified by the Senate.

The U.S. Constitution grants the president and Senate the power to create treaties. However, there is no provision that allows Congress to enforce treaties with powers other than those granted to it by Article1 of the Constitution.  The constitutional limitation on Congress’ power is fundamental to the American system of government. The Constitution while limiting is not meant to bar progress or international agreements. Most treaties can be enforced by Congress through its commerce power, its power over the military and piracy, or as is the case here its power to regulate intellectual property.

Ultimately the decision in Golan v. Holder, boils down to what “securing for limited Times” in Article 1 Section 8 clause 8 of the Constitution means. Once a limited time is secured, can it be extended? When that time has expired, can it be restored? The majority of the Supreme Court tells us the answer to both questions is yes.

The majority relies on the meaning of the word limited and the precedent of Congress extending terms of copyrights and removing works from the public domain with the passage of the first copyright act in 1790 and after the world wars.

Ultimately I believe that the words “securing for limited times” implies that the term of copyright is fixed once it is granted. However, I do not believe that the Constitution’s words are meant to be rigidly interpreted. With strong rational reasons Congress should be allowed to extend the terms of copyright. The initial creation of copyright and the aftermath of world war are clearly strong rational arguments for granting copyright to works formerly in the public domain. Bringing the United States into full compliance with international intellectual property treaties is definitely a rational reason for restoring works to copyright. I’m just not sure I’m entirely convinced by it.