Shifting Sands In The Public Domain- Copyright

This week The United States Supreme Court upheld Congressional action in 1994 that caused some foreign creative works  that had fallen into the public domain to have U.S. Copyright protection again.

For a variety of reasons, the works at issue, which are foreign and produced decades ago, became part of the public domain in the United States but were still copyrighted overseas. In 1994, Congress adopted legislation to move the works back into copyright, so U.S. policy would align with an international copyright treaty known as the Berne Convention.

In reading the opinion, the result seems correct, if counterintuitive, as some things in copyright law are. (see e.g. the work for hire rule).

This decision is as inside baseball as it gets in the IP field, so of course I wanted to share it with you. Then again, maybe I just wanted to point out the rather odd language in the Court’s ultimate holding:


Neither the Copyright and Patent Clause nor the First Amendment,

we hold, makes the public domain, in any and all cases, a territory that works may never exit.

Enjoy reading. I suppose the downside of the Supreme Court giving Congress breadth of power in Copyright is what happens to the incarnation of SOPA and PIPA, in which Congress was contemplating privatizing U.S. Copyright law.



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