Copyright

Golan v. Holder: When Congress Pulled Foreign Works Back Out of the Public Domain

The Supreme Court upheld Section 514 of the Uruguay Round Agreements Act, holding that Congress may restore copyright to foreign works that had already entered the U.S. public domain.

March 17, 2025
Sheet music on a conductor's stand in an empty concert hall
Orchestra conductors who had freely performed Prokofiev and Shostakovich suddenly faced licensing demands once Congress restored foreign copyrights. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

Golan v. Holder, 565 U.S. 302 (2012), No. 10-545, decided January 18, 2012, is the Supreme Court’s definitive answer to a question that once seemed almost taboo: can Congress take works out of the public domain and put them back under copyright? By a 6-2 vote (Justice Kagan recused), the Court said yes. Writing for the majority, Justice Ginsburg held that Section 514 of the Uruguay Round Agreements Act of 1994 — which restored U.S. copyright to thousands of foreign works that had lapsed into the public domain — exceeded neither the Copyright Clause’s “limited Times” constraint nor the First Amendment. The decision reshaped the relationship between the public domain and the United States’ obligations under the Berne Convention.

At a glance

  • Case: Golan v. Holder, 565 U.S. 302 (2012), No. 10-545
  • Decided: January 18, 2012; opinion by Justice Ginsburg (joined by Roberts, Scalia, Kennedy, Thomas, and Sotomayor); dissent by Justice Breyer (joined by Alito); Justice Kagan recused
  • Statute: Section 514 of the Uruguay Round Agreements Act, codified at 17 U.S.C. §§ 104A and 109(a), restoring copyright in qualifying foreign works
  • Holding: Congress may grant copyright protection to foreign works already in the U.S. public domain; doing so violates neither the Copyright Clause nor the First Amendment
  • Disposition: Affirmed the Tenth Circuit

How a treaty obligation reached into the public domain

The case grew out of a long-standing gap in U.S. compliance with the Berne Convention for the Protection of Literary and Artistic Works, which the United States did not join until 1989. Berne’s Article 18 requires member countries to protect works originating in other member states even if those works were created before the protecting country joined — so long as the works had not yet fallen into the public domain in their home country through expiration of term. For decades, however, large numbers of foreign works had lapsed into the U.S. public domain for reasons that had nothing to do with their home-country term: failure to comply with American formalities such as notice and renewal, the absence of copyright relations between the United States and the source country, or the prior exclusion of certain media (notably foreign sound recordings) from federal protection.

When Congress enacted the Uruguay Round Agreements Act to implement the TRIPS component of the World Trade Organization agreements, Section 514 closed that gap. It restored copyright to foreign works that remained protected in their country of origin but had entered the U.S. public domain for one of those non-term reasons. The restored term ran for whatever protection the work would have enjoyed had it never lost copyright in the first place.

The plaintiffs were not casual users. They were orchestra conductors, educators, performers, film archivists, and distributors who had built their livelihoods on the free availability of foreign works — Stravinsky, Prokofiev, Shostakovich, and many others — that had long circulated without restriction in the United States. Section 514 abruptly converted that free repertoire into licensed material. Led by conductor Lawrence Golan, they argued that the restoration was unconstitutional.

The petitioners’ first theory rested on the Copyright Clause itself, which empowers Congress to secure exclusive rights “for limited Times.” A work in the public domain, they contended, belongs to the public permanently; once a copyright expires or never attaches, the “limited Time” has run, and Congress cannot restart the clock. To restore copyright, on this view, is to grant an effectively unlimited term by allowing endless do-overs.

Justice Ginsburg rejected the premise that the public domain is a one-way valve. The text of the Copyright Clause, she wrote, says nothing that confines Congress to a single, irrevocable grant or forbids protection of works that once lacked it. Historical practice cut against the petitioners: the first Congress extended protection to works already published, and Congress had repeatedly granted or restored protection to categories of works previously unprotected, including during both World Wars when it excused foreign authors’ failures to meet U.S. formalities. The “limited Times” requirement, the Court held, constrains the duration of any given copyright term — Section 514’s restored terms were finite — but does not freeze the public domain against all future congressional action.

The majority leaned heavily on Eldred v. Ashcroft (2003), which had upheld the twenty-year term extension of the Sonny Bono Act. Eldred established that the judiciary owes substantial deference to Congress’s copyright judgments and that the Copyright Clause does not embed a rigid quid pro quo demanding new creation in exchange for every grant. If Congress could lengthen existing copyrights without offending the Clause, the Court reasoned, it could likewise restore lapsed ones to bring the nation into harmony with its treaty partners.

The harder argument was the First Amendment. The petitioners had enjoyed a settled freedom to perform, copy, and adapt public-domain works; Section 514 stripped that freedom away. They invoked language from Eldred suggesting that First Amendment scrutiny is warranted when Congress alters “the traditional contours of copyright protection.” Removing works from the public domain, they urged, was exactly such an alteration.

Justice Ginsburg read Eldred’s “traditional contours” phrase narrowly. It referred, she explained, to copyright’s two built-in free-speech safeguards: the idea/expression dichotomy, which leaves facts and ideas free for all to use, and the fair use doctrine. So long as a copyright statute preserves both of those accommodations — and Section 514 did — it does not disturb the traditional contours that would trigger heightened First Amendment review. The public domain, the Court held, is not itself a First Amendment-protected category that Congress is forbidden to diminish.

The majority acknowledged that some users — so-called “reliance parties” who had exploited the works while they were free — would bear real costs. But Congress had cushioned the blow with transitional provisions: reliance parties received notice requirements, a grace period, and the ability to continue exploiting derivative works they had already created upon payment of reasonable compensation. Those accommodations, the Court concluded, adequately respected whatever speech interests were at stake.

Justice Breyer’s dissent took the opposite view of copyright’s purpose. Copyright exists to incentivize the creation of new works, he argued, and restoration cannot possibly incentivize the creation of works that already exist. Section 514 therefore imposed real costs — on orchestras, teachers, and archivists — while producing no offsetting creative benefit, a bargain the Copyright Clause was never meant to authorize. The majority answered that the Clause’s purposes include securing reciprocal protection for American authors abroad, a forward-looking national interest the dissent undervalued.

Open questions

  • How far does Congress’s power to alter the public domain extend? Golan upheld restoration tied to a treaty obligation, but the opinion’s reasoning is not obviously limited to the international context.
  • What protection do reliance parties actually retain when restoration disrupts settled business models? The statutory accommodations were upheld in the abstract, but their adequacy in particular industries remains litigable.
  • Does Golan’s narrow reading of “traditional contours” leave any meaningful First Amendment check on copyright legislation beyond idea/expression and fair use?

Implications

  • The public domain is statutory, not constitutional. After Golan, works in the public domain enjoy no inherent constitutional immunity from re-protection; their status is a policy choice Congress can revisit.
  • Treaty compliance is a powerful justification. The decision gives Congress wide latitude to harmonize U.S. law with Berne and TRIPS, including by sacrificing domestic public-domain interests.
  • Section 104A is firmly entrenched. Users of foreign works created before 1989 must check whether a work’s U.S. copyright was restored rather than assuming public-domain status from a missing notice or renewal.
  • First Amendment defenses to copyright remain narrow. Golan confirms that idea/expression and fair use carry the entire constitutional load, leaving little room for free-speech challenges to the scope of copyright itself.

Frequently asked questions

Did Golan v. Holder restore copyright to all foreign works? No. Section 104A restored protection only to works that still enjoyed copyright in their source country and had fallen into the U.S. public domain for specific non-term reasons — lack of copyright relations, failure to satisfy U.S. formalities, or prior statutory exclusion of the medium. Works whose home-country term had expired stayed in the public domain.

Can Congress now take any work out of the public domain? The Court did not endorse unlimited power, but its reasoning was not confined to the treaty setting. Golan holds that the Copyright Clause’s “limited Times” language governs the length of a term, not the permanence of the public domain, leaving the outer boundary of congressional power undefined.

What happened to people who were already using the restored works? Congress provided transitional protection for “reliance parties.” They received notice and a grace period to wind down or, in the case of derivative works already created, the ability to continue exploiting them upon paying the restored owner reasonable compensation.

Authorities and sources