UPDATE: High Court Holds Foreign Works in Public Domain Still 'Copyrightable'

Image by Getty Images via @daylifeBy a 6-2 margin, with Justice Elena Kagan recusing herself, the U.S. Supreme Court this week ruled Congress has the authority to restore copyright protection to foreign works previously in the public domain without running afoul of the Constitution's Progress Clause (Art. 1, Sec. 8, Clause 8) [see "TUOL" post 3/8/11].

Justice Ruth Bader Ginsburg wrote the majority opinion in Golan v. Holder (Case No. 10-545), finding that the  power conferred to Congress by the Constitution "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" was not undermined when the U.S. signed onto the Uruguay Round Agreements Act of 1994 ("URAA") international treaty that accorded copyright protection to previously accessible foreign works by individuals ranging from author Virginia Woolf and film auteur Federico Fellini to composer Dmitri Shostakovich.

The case was originally brought by Lawrence Golan, a conductor who sought to produce a derivative composition based on works by Shostakovich in the public domain, who argued URAA stifled creativity. The government, in turn, contended that U.S. participation in an international copyright treaty served the nation's interests.

Justice Ginsburg wrote: "Nothing in the text of the Copyright Clause confines the 'Progress of Science' exclusively to 'incentives for creation.'" In a strong dissent, Justice Stephen Breyer lamented URAA "does not encourage anyone to produce a single new work [and] bestows monetary rewards only on owners of old works--works that already have been created and already are in the American public domain."