About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

7 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most