Supreme Court Upholds Restoration of U.S. Copyright Protection for Foreign Works in the Public Domain

January 2012

If you confront the question whether a foreign book, movie, song, artistic work, or other work of authorship is still in copyright in the U.S. or whether such a foreign work is being infringed in the United States, take note of a major new Supreme Court decision, Golan v. Holder. [1]

In Golan, the Court upheld a 1994 statute "restoring" the copyright in certain foreign works that hadn't previously been protected in this country.  The statute, the Uruguay Round Agreements Act (URAA)[2], shifted three categories of works out of the public domain and into U.S. copyright:  (1) works from countries that lacked copyright reciprocity with the United States when first published, (2) works where the foreign author had failed to observe "formalities" previously required in the United States, such as affixing a copyright notice, and (3) foreign sound recordings made before U.S. copyright law began protecting them in 1972.[3]

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[1] No. 10-545, 565 U.S. — , 2012 WL 125436 (Jan. 18, 2012) (decided 6-2 (Kagan, J., not participating)).  Footnote 2 cited an amicus brief submitted by this Firm (Gloria C. Phares and Miriam Gedwiser on the brief) on behalf of the International Publishers Association, the International Federation of Scholarly Publishers, the International Association of Scientific, Technical & Medical Publishers, Börsenverein des Deutschen Buchhandels e.V., the International Federation of Reproduction Rights Organisations, and the Copyright Clearance Center.

[2] 17 U.S.C. §§ 104A, 109(a).

[3] Technically, "restored" is a misnomer for the many works that never had been protected by U.S. copyright because of lack of U.S. copyright relations or lack of subject-matter protection, but "restoration" is the term used in the URAA.