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Limitations on Congressional Power: Limited Times, Term Extension and the First Amendment 77
copyright law presumptively (though not categorically) immune from First Amendment
scrutiny.
[The CTEA] protects authors’ original expression from unrestricted
exploitation. Protection of that order does not raise the free speech
concerns present when the government compels or burdens the communication
of particular facts or ideas. The First Amendment securely
protects the freedom to make—or decline to make—one’s own speech; it
bears less heavily when speakers assert the right to make other people’s
speeches. To the extent such assertions raise First Amendment concerns,
copyright’s built-in free speech safeguards are generally adequate to
address them.
Are archivists and librarians trying to digitize orphan works asserting “the right to
make other people’s speeches”? Does retrospective term extension—as to those works—
have an expression-promoting effect? Are the internal limitations of copyright enough to
protect their activity?
3.) What is the strongest criticism that could be made of Justice Breyer’s opinion? If his
proposed standard of review should be used here, why not in Commerce Clause cases?
4.) Justice Ginsburg and Justice Breyer both seem to think that “copyright is different,”
that its rules present special constitutional issues, though they disagree strongly on what
those differences are. If you had to sum up why Justice Ginsburg believes Congress
deserves judicial deference and that copyright legislation should be presumptively free
from First Amendment scrutiny, how would you do so? If you had to sum up why Justice
Breyer thinks that this issue deserves heightened scrutiny, how would you do so? How
do they frame the issue differently?
Golan v. Holder
132 S.Ct. 873 (2012)
GINSBURG, J., delivered the opinion of the Court. BREYER, J., filed a dissenting
opinion, in which ALITO, J., joined.
Justice GINSBURG delivered the opinion of the Court.
The Berne Convention for the Protection of Literary and Artistic Works (Berne
Convention or Berne), which took effect in 1886, is the principal accord governing international
copyright relations. Latecomer to the international copyright regime launched by
Berne, the United States joined the Convention in 1989. To perfect U.S. implementation of
Berne, and as part of our response to the Uruguay Round of multilateral trade negotiations,
Congress, in 1994, gave works enjoying copyright protection abroad the same full term of
protection available to U.S. works. Congress did so in § 514 of the Uruguay Round
Agreements Act (URAA), which grants copyright protection to preexisting works of Berne
member countries, protected in their country of origin, but lacking protection in the United
States for any of three reasons: The United States did not protect works from the country
of origin at the time of publication; the United States did not protect sound recordings fixed
before 1972; or the author had failed to comply with U.S. statutory formalities (formalities
Congress no longer requires as prerequisites to copyright protection).