Can foreign works that have passed into the public domain in the U.S. be withdrawn by Congress and put back under copyright protection? That question will be addressed by the U.S. Supreme Court, which this week granted a writ of certiorari in a case, Golan v. Holder, that questions the constitutionality of a federal statute that restored copyright protection to thousands of foreign works, including symphonies by Shostakovich and Stravinsky, books by Virginia Woolf, artwork by Picasso, and films by Fellini and Hitchcock.

The case has had a winding legal road so far. The challenge stems from a 1994 amendment to the Copyright Act, known as the Uruguay Round Agreements Act (URAA), which removed some foreign works from the public domain in the U.S. in order to implement intellectual property treaties. Petitioners, (Lawrence Golan, the Estate of Richard Kapp, S.A. Publishing Co., Inc., Symphony of the Canyons, Ron Hall, and John McDonough) originally filed suit in 2001, contending that Congress exceeded its Article I power and violated the First Amendment by enacting the URAA. In 2005, a district court rejected the petitioner's claims. In 2007, however, the Tenth Circuit revived the challenge, and sent the case back to district court. On its second look, the district court found that the URAA was unconstitutional because it violated the First Amendment. But the Tenth Circuit reversed that decision. After a petition filed by the Fair Use Project at Stanford University in October, 2010, the Supreme Court will now hear the case.

The ruling could have major implications for U.S. intellectual property policy. Specifically, the court will review whether removing material from the public domain violates the “limited times” restriction as laid out in the “Copyright Clause,” which gives Congress the power 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.” In addition, the petitioners contend the URAA violates the First Amendment, because it is not “narrowly tailored" to any important government interest.

“This statute [URAA] throws into question one of the most basic premises of intellectual property: once a work of authorship is placed in the Public Domain, it belongs to the public, and remains the property of the public,” explains Anthony Falzone, the executive director of the Stanford University Fair Use Project. “That principle was respected for more than 200 years, because it represents a critical limit on the intellectual property ‘monopoly’ the framers authorized. What Congress did here represents a huge departure from those basic principles with substantial constitutional ramifications.”