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7 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2011-2012)

handle is hein.journals/dukjppsid7 and id is 1 raw text is: GOLAN V. HOLDER: CONGRESSIONAL POWER UNDER THE COPYRIGHT CLAUSE AND THE FIRST AMENDMENT CLAIRE FONG* I. INTRODUCTION Golan v. Holder' presents the question of whether Congress was constitutionally permitted to pass Section 514 of the Uruguay Round Agreements Act,2 a statute that restored copyright protection to foreign works that had been free for public use for decades.3 The Copyright Clause gives Congress the authority to create limited monopolies in original works of authorship.4 As with all congressional powers, however, the copyright power has its limits. These limits are particularly important because copyright grants authors the exclusive right to copy, distribute, and adapt their works, potentially denying the public access to the building blocks of future creativity.' Because the public domain is restricted with each additional protection that copyright provides, Congress must carefully balance the interests of the American public with those of copyright holders in determining the scope and duration of copyright protection.' Over time, Congress has shifted the balance increasingly in favor of copyright holders. J.D. Candidate, 2013, Duke University School of Law. 1. Golan v. Holder, No. 10-545 (U.S. argued Oct. 5,2011). 2. Uruguay Round Agreements Act § 514, 17 U.S.C.A. § 104A (West 1994). 3. Brief for the Petitioners at 2, Golan v. Holder, No. 10-545 (U.S. June 14, 2011). 4. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991). 5. Graham v. John Deere Co., 383 U.S. 1, 5 (1966). Congress may only grant copyright to original works. See Feist Publ'ns, Inc., 499 U.S. at 346 (Originality is a constitutional requirement.). In addition, Congress may not grant perpetual copyrights. See Eldred v. Ashcroft, 537 U.S. 186, 209-10 (2003) (discussing the limited times constraint). Nor may it grant copyright to ideas or disallow fair use without violating the First Amendment. See id. at 219 21 (declaring that the idea/expression dichotomy and fair use defense make copyright compatible with the First Amendment). 6. Brief for the Petitioners, supra note 3, at 3-4. 7. Id. at 3. 8. See Eldred, 537 U.S. at 200 01 (discussing two prior copyright term extensions in the

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