Two En Banc Articles cited in U.S. Supreme Court opinion in Golan v. Holder

Feb 1, 2012

Two articles from En Banc, the Vanderbilt Law Review‘s online companion, were cited by the U.S. Supreme Court in Golan v. Holder, in which the Court held Congress has the power to restore copyright to certain foreign works that were previously in the public domain in the United States. Justice Stephen Breyer, in a dissenting opinion joined by Justice Samuel Alito, cited Vanderbilt Law Professor Daniel GervaisEn Banc article “Golan v. Holder: A Look at the Constraints Imposed by the Berne Convention” and Elizabeth Townsend Gard’s “In the Trenches with 104(a): An Evaluation of the Parties’ Arguments in Golan v. Holder as It Heads to the Supreme Court.” Justice Ruth Bader Ginsburg, writing for the majority, cited Professor Gervais’ book, The TRIPS Agreement.

The articles by Gervais and Gard were published in October 2011 as part of En Banc‘s Roundtable series, which seeks to create scholarly discussion about upcoming U.S. Supreme Court cases. The En Banc editors for 2011-12 are John C. Williams (Senior Editor), Rebecca Dunnan and Benjamin Halperin.

Golan v. Holder addressed the question of whether the Copyright Clause of the U.S. Constitution prohibited Congress from taking works out of the public domain retroactively. The case was brought after millions of foreign works that had previously been placed in the U.S. public domain under the Copyright Act were granted renewed copyright protection after the U.S. signed an international copyright protection accord, the Uruguay Round Agreements Act of 1994. The U.S. government subsequently removed works granted protection under Section 514 of the Uruguay Round Agreements Act from the U.S. public domain. The petitioners, who represented musicians, conductors, publishers and others interested in keeping the works in the public domain, brought suit contending that Section 514 of the agreement violated the specific limitations of the Copyright Clause. In a majority opinion written by Justice Ruth Bader Ginsburg, the Court ruled that Congress legitimately exercised its power in restoring copyright protection to the works. Justice Ginsburg was joined in the majority opinion by Chief Justice Roberts and Justices Kennedy, Scalia, Sotomayor and Thomas.

In his dissenting opinion in Golan, Justice Breyer cited Gervais’ work to emphasize that the U.S. government “made no effort to secure a reservation permitting the United States to keep some or all restored works in the American public domain” despite the fact – which Gervais had noted in his “Look at the Constraints Imposed by the Berne Convention” – that it was permitted to do so under the Berne Convention for the Protection of Literary and Artistic Works, the principal accord governing all international copyright relations. Justice Breyer also cited Gard’s work, which focuses on technical requirements that make it difficult to determine whether a work’s copyright had been restored. Justice Breyer concluded that “the [Berne] Convention does not require Congress to enact a statute that causes so much damage to public domain material.”

This marks the second time Justice Breyer has cited articles published in En Banc in a dissenting opinion. In his dissent in Free Enterprise Fund v. PCAOB, an opinion handed down by the Court in June 2010, Justice Breyer cited two articles published in the November 2009 issue of En Banc. That case involved a challenge by a free-enterprise group and a Nevada accounting firm to the constitutionality of the Public Company Accounting Oversight Board (PCAOB), whose members are appointed by the Securities and Exchange Commission.

The first issue of En Banc was published online in fall 2008, and the “Roundtable” was launched in November 2009 specifically for the purpose of providing a forum for law scholars and practitioners to discuss significant, pending Supreme Court cases. “En Banc has been cited in a Supreme Court opinion in two of the four years of its existence,” said Tracey George, professor of law, who serves as faculty advisor to the Vanderbilt Law Review. “That’s a clear indication that the forum is achieving its goal of fostering substantive debate.”


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