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Copyright Law v. Trade Policy: Understanding the Golan Battle within the Tenth Circuit


Elizabeth Townsend Gard


Tulane University Law School

March 8, 2011

Columbia Journal of Law & the Arts, Vol. 34, No. 2, 2011
Tulane Public Law Research Paper No. 11-02

Abstract:     
The Tenth Circuit seems to be in a battle with itself over the meaning and definition of our copyright system. In the last two years, the Tenth Circuit defined the public domain as a constitutionally protected component of the copyright system, and then reversing itself, defined copyright (ignoring the public domain) as a tool for international trade, where treaty obligations outweigh tradition. The Golan case stands at the center of competing priorities and definitions. How are we to understand the “physics” of the public domain within contemporary copyright law? Does copyright have principles and an internal logic to foster creativity, or is copyright to be seen as malleable tool for trade and international relations?

Judge Henry in the 2007 Tenth Circuit Golan v. Gonzales stated that under the traditional contours of copyright, what comes into the public domain, stays in the public domain. With this came a First Amendment right to use public domain works, and he remanded the case back to the district court to further determine whether the statute in question required content-based or content-neutral First amendment analysis. This decision marked the first time a part of the copyright law had been found unconstitutional, and it also marked a moment where the public domain appeared to be protected by the U.S. Constitution. Upon appeal from the district court remanded decision, the Tenth Circuit appeals court — albeit with a different chief judge — found the same statute not in violation of the First Amendment, and perfectly in line with the United State’s treaty and international obligations. In this opinion, works in the public domain were fair game, particularly because their restoration would somehow help American authors indirectly. Copyright was merely a tool for trade law, and, because of this, any alteration was acceptable and necessary.

Part I provides an overview of the legal space of the public domain, both from case law as well as concrete examples of works entering their second life in the public domain. Part II explains the long history leading up to § 104A, in particular the history of the United State’s resistance to restoring foreign works. Part III describes the copyright system before restoration and what kinds of works are subject of restoration. Part IV details the mechanics of § 104A, including the basic requirements for restoration, as well as how changes in the U.S. copyright system impact which works are the subject of restoration. Part V discusses the mechanics of reliance and reliance parties under § 104A — that is, parties who had been using the public domain before the work was restored. Part VI then turns to the Golan cases — the district court case, the first Tenth Circuit decision, the remanded district court decision and, upon appeal, the second Tenth Circuit decision. Part VII concludes with a summary of the problems with § 104A, solutions and suggestions on how to solve the problems and a few concluding thoughts.

Number of Pages in PDF File: 69

Keywords: public domain, 104A, trade, copyright

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Date posted: March 10, 2011  

Suggested Citation

Townsend Gard, Elizabeth, Copyright Law v. Trade Policy: Understanding the Golan Battle within the Tenth Circuit (March 8, 2011). Columbia Journal of Law & the Arts, Vol. 34, No. 2, 2011; Tulane Public Law Research Paper No. 11-02. Available at SSRN: http://ssrn.com/abstract=1781011

Contact Information

Elizabeth Townsend Gard (Contact Author)
Tulane University Law School ( email )
6329 Freret Street
New Orleans, LA 70118
United States
504 862 8822 (Phone)
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