In 1994, Congress passed legislation in order to bring the United States into compliance with the Uruguay Rounds Agreement Act.  One of the effects: “potentially millions” of foreign works in the American public domain would go back under the protection of copyright.

Golan’s case, represented by the Stanford Center for Internet and Society, has gone through a number of metamorphoses – beginning in 2001 as Golan v. Ashcroft, then Golan v. Eldridge – and the district court held that “the body of law [in the United States] includes the bedrock principle that works in the public domain remain in the public domain.”  That decision, however, was just overruled by the 10th Circuit Court of Appeals, which found that the URAA is completely constitutional.

Certainly, actively removing works from the public domain is a crippling blow to reformers, lawyers, and activists whose goal is reviving the public domain, but there is a silver lining: Golan’s petition for certiorari has been granted.  The Supreme Court will review the case based on the Progress Clause of the Constitution and the 1st Amendment complaints of Golan, and stated that the case will be a “major test of copyright power.”

The holding that Congress can remove works from the public domain at whim, and reinstate copyright as they deem necessary, is a dangerous precedent to set in a climate where the public domain has all but evaporated.  Essentially, if the Supreme Court upholds the 10th Circuit’s decision, American copyright law will become even more stringent than it is now.  Another copyright term extension act is inevitable as it is now, but a decision that allows Congress to “restore” the copyright of public domain works would further constrict the already limited public domain.  What we need is more public domain works, not less.

Do you think Congress should be allowed to remove works from the public domain?