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Can You Re-Copyright Works That Fall Into Public Domain? High Court To Rule

Publication Date: 
March 07, 2011
Joe Mullin

Director of the Fair Use Project Anthony Falzone is quoted in the following article due to his involvement in the Supreme Court case, Golan v. Holder. Joe Mullin of reports:

Copyrights do end—although these days, they’re so long (95 years for most works) that you’d scarcely know it. Once a work does fall into the public domain, can it be copyrighted again? In 1994, Congress effectively said “yes” when it passed a law that the government argued was necessary to get the U.S. properly aligned with the Berne Convention, an important international copyright treaty. But a group of public-interest lawyers and small businesses that use public-domain works have challenged the law, and today the U.S. Supreme Court agreed to hear their case.

The works that will be affected by Golan v. Holder are all foreign, and date from the earlier part of the 20th century. For various reasons, they fell into the public domain in the U.S.—but are still under copyright outside the U.S. In 1994, Congress put the works back into copyrighted status, with the goal of aligning U.S. and international copyright law in certain ways.


In an interview this morning, Anthony Falzone, who directs Stanford Law School’s Fair Use Project, said he was thrilled. “This case presents some really important issues, and I’m glad the Supreme Court decided it was worth its attention.”

Falzone added that the idea that a victory for his clients would throw international copyright law into disorder was an exaggeration, although he did say that some aspects of how the U.S. adheres to key treaties like the Berne Convention may need to be re-negotiated. But that treaty gives countries plenty of latitude in choosing how to protect artists, he said. In any case, there continue to be areas where U.S. law differs substantially from European law; we don’t offer creators “moral rights” that extend beyond copyright, for example.