Golan v. Holder: Protection of “Old” Works under the Berne Convention and the WTO Agreements

Essential reading:

Wikipedia: Golan v. Holder

http://en.wikipedia.org/wiki/Golan_v._Holder

Supreme Court: Golan v. Holder (read the syllabus)

http://www.supremecourt.gov/opinions/11pdf/10-545.pdf

Critical comment: Supreme Court Gets It Wrong in Golan v. Holder, Public Domain Mourns

https://www.eff.org/deeplinks/2012/01/supreme-court-gets-it-wrong-golan-v-holder-public-domain-mourns

Additional reading:

Brief for Golan (read pages 14-18):

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/Golan-Merits-Brief-FILED.pdf

Brief for the US (read pages 10-13):

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/Golan-response-for-the-US.pdf

Technical reading (optional):

Berne Convention: Article 18

http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P205_40480

TRIPS Agreement: Article 9

https://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm#1

Uruguay Round Agreements Act: Section 514

http://en.wikisource.org/wiki/Uruguay_Round_Agreements_Act/Title_V#SEC._514._RESTORED_WORKS.

Issues for discussion:

1. What does the Berne Convention say about the protection of foreign works created before a country joined the convention?
2. The US joined the Berne Convention in 1989. Why did old foreign works remained to be unprotected? Why the rule was changed in 1994?
3. Why US musicians were unhappy with the new rule?
4. What were the major arguments of the musicians in court?
5. What were the major arguments of their opponents (the government)?
6. Do you think the copyright law restricts free speech?
7. What was the decision of the US Supreme Court? What was its reasoning?
8. What do you think was more beneficial for the US: to be smart and find a way to circumvent the requirements of the international treaty unpleasant for US musicians, or to be honest and comply with international obligations in good faith? Why?