(Slip Opinion)
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` OCTOBER TERM, 2011
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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` Syllabus
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` GOLAN ET AL. v. HOLDER, ATTORNEY GENERAL,
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`ET AL.
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`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE TENTH CIRCUIT
` No. 10–545. Argued October 5, 2011—Decided January 18, 2012
`
`The Berne Convention for the Protection of Literary and Artistic Works
`(Berne), which took effect in 1886, is the principal accord governing
`international copyright relations. Berne’s 164 member states agree
`to provide a minimum level of copyright protection and to treat au-
`thors from other member countries as well as they treat their own.
`Of central importance in this case, Article 18 of Berne requires coun-
`tries to protect the works of other member states unless the works’
`copyright term has expired in either the country where protection is
`claimed or the country of origin. A different system of transnational
`copyright protection long prevailed in this country. Throughout most
`of the 20th century, the only foreign authors eligible for Copyright
`Act protection were those whose countries granted reciprocal rights
`to American authors and whose works were printed in the United
`States. Despite Article 18, when the United States joined Berne in
`
` 1989, it did not protect any foreign works lodged in the U. S. public
`domain, many of them works never protected here. In 1994, howev-
`er, the Agreement on Trade-Related Aspects of Intellectual Property
`Rights mandated implementation of Berne’s first 21 articles, on pain
`of enforcement by the World Trade Organization.
`
`
`In response, Congress applied the term of protection available to
`U. S. works to preexisting works from Berne member countries. Sec-
`tion 514 of the Uruguay Round Agreements Act (URAA) grants copy-
`right protection to works protected in their country of origin, but
`lacking protection in the United States for any of three reasons: The
`United States did not protect works from the country of origin at the
`time of publication; the United States did not protect sound record-
`ings fixed before 1972; or the author had not complied with certain
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`2
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`GOLAN v. HOLDER
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`Syllabus
`U. S. statutory formalities. Works encompassed by §514 are granted
`the protection they would have enjoyed had the United States main-
`tained copyright relations with the author’s country or removed for-
`malities incompatible with Berne. As a consequence of the barriers
`to U. S. copyright protection prior to §514’s enactment, foreign works
`“restored” to protection by the measure had entered the public do-
`main in this country. To cushion the impact of their placement in
`protected status, §514 provides ameliorating accommodations for
`parties who had exploited affected works before the URAA was
`enacted.
`
`Petitioners are orchestra conductors, musicians, publishers, and
`others who formerly enjoyed free access to works §514 removed from
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`the public domain. They maintain that Congress, in passing §514,
`exceeded its authority under the Copyright Clause and transgressed
`First Amendment limitations. The District Court granted the Attor-
`ney General’s motion for summary judgment. Affirming in part, the
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`Tenth Circuit agreed that Congress had not offended the Copyright
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`Clause, but concluded that §514 required further First Amendment
`inspection in light of Eldred v. Ashcroft, 537 U. S. 186. On remand,
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`the District Court granted summary judgment to petitioners on the
`First Amendment claim, holding that §514’s constriction of the public
`domain was not justified by any of the asserted federal interests. The
`Tenth Circuit reversed, ruling that §514 was narrowly tailored to fit
`the important government aim of protecting U. S. copyright holders’
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`interests abroad.
`Held:
`1. Section 514 does not exceed Congress’ authority under the Copy-
`right Clause. Pp. 13–23.
`
`(a) The text of the Copyright Clause does not exclude application
`of copyright protection to works in the public domain. Eldred is
`largely dispositive of petitioners’ claim that the Clause’s confinement
`of a copyright’s lifespan to a “limited Tim[e]” prevents the removal of
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`works from the public domain. In Eldred, the Court upheld the Cop-
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`yright Term Extension Act (CTEA), which extended, by 20 years, the
`terms of existing copyrights. The text of the Copyright Clause, the
`Court observed, contains no “command that a time prescription, once
`set, becomes forever ‘fixed’ or ‘inalterable,’ ” and the Court declined to
`infer any such command. 537 U. S., at 199. The construction peti-
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`tioners tender here is similarly infirm. The terms afforded works re-
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`stored by §514 are no less “limited” than those the CTEA lengthened.
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`Nor had the “limited Tim[e]” already passed for the works at issue
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`here—many of them works formerly denied any U. S. copyright pro-
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`tection—for a period of exclusivity must begin before it may end. Pe-
`titioners also urge that the Government’s position would allow Con-
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`Cite as: 565 U. S. ____ (2012)
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`Syllabus
`gress to legislate perpetual copyright terms by instituting successive
`“limited” terms as prior terms expire. But as in Eldred, such hypo-
`thetical misbehavior is far afield from this case. In aligning the
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`United States with other nations bound by Berne, Congress can hard-
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`ly be charged with a design to move stealthily toward a perpetual
`copyright regime. Pp. 13–15.
`
`(b) Historical practice corroborates the Court’s reading of the Copy-
`right Clause to permit the protection of previously unprotected
`works. In the Copyright Act of 1790, the First Congress protected
`works that had been freely reproducible under State copyright laws.
`Subsequent actions confirm that Congress has not understood the
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`Copyright Clause to preclude protection for existing works. Several
`private bills restored the copyrights and patents of works and inven-
`tions previously in the public domain. Congress has also passed gen-
`erally applicable legislation granting copyrights and patents to works
`and inventions that had lost protection. Pp. 15–19.
`
`(c) Petitioners also argue that §514 fails to “promote the Progress of
`Science” as contemplated by the initial words of the Copyright
`Clause. Specifically, they claim that because §514 affects only works
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`already created, it cannot meet the Clause’s objective. The creation
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`of new works, however, is not the sole way Congress may promote
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`“Science,” i.e., knowledge and learning. In Eldred, this Court rejected
`a nearly identical argument, concluding that the Clause does not de-
`mand that each copyright provision, examined discretely, operate to
`induce new works. Rather the Clause “empowers Congress to deter-
`mine the intellectual property regimes that, overall, in that body’s
`judgment, will serve the ends of the Clause.” 537 U. S., at 222.
`Nothing in the text or history of the Copyright Clause, moreover, con-
`fines the “Progress of Science” exclusively to “incentives for creation.”
`Historical evidence, congressional practice, and this Court’s deci-
`sions, in fact, suggest that inducing the dissemination of existing
`works is an appropriate means to promote science. Pp. 20–22.
`
`(d) Considered against this backdrop, §514 falls comfortably within
`Congress’ Copyright Clause authority. Congress had reason to be-
`lieve that a well-functioning international copyright system would
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`encourage the dissemination of existing and future works. And tes-
`timony informed Congress that full compliance with Berne would ex-
`pand the foreign markets available to U. S. authors and invigorate
`protection against piracy of U. S. works abroad, thus benefitting cop-
`yright-intensive industries stateside and inducing greater investment
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`in the creative process. This Court has no warrant to reject Congress’
`rational judgment that exemplary adherence to Berne would serve
`the objectives of the Copyright Clause. Pp. 22–23.
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`2. The First Amendment does not inhibit the restoration author-
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`4
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`GOLAN v. HOLDER
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`Syllabus
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`ized by §514. Pp. 23–32.
`(a) The pathmarking Eldred decision is again instructive. There,
`the Court held that the CTEA’s enlargement of a copyright’s duration
`did not offend the First Amendment’s freedom of expression guaran-
`tee. Recognizing that some restriction on expression is the inherent
`and intended effect of every grant of copyright, the Court observed
`that the Framers regarded copyright protection not simply as a limit
`on the manner in which expressive works may be used, but also as an
`“engine of free expression.” 537 U. S., at 219. The “traditional con-
`tours” of copyright protection, i.e., the “idea/expression dichotomy”
`and the “fair use” defense, moreover, serve as “built-in First Amend-
`ment accommodations.” Ibid. Given the speech-protective purposes
`and safeguards embraced by copyright law, there was no call for the
`heightened review sought in Eldred. The Court reaches the same
`
`conclusion here. Section 514 leaves undisturbed the idea/expression
`distinction and the fair use defense. Moreover, Congress adopted
`measures to ease the transition from a national scheme to an inter-
`national copyright regime. Pp. 23–26.
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`
`
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`(b) Petitioners claim that First Amendment interests of a higher
`order are at stake because they—unlike their Eldred counterparts—
`
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`enjoyed “vested rights” in works that had already entered the public
`domain. Their contentions depend on an argument already consid-
`ered and rejected, namely, that the Constitution renders the public
`domain largely untouchable by Congress. Nothing in the historical
`record, subsequent congressional practice, or this Court’s jurispru-
`dence warrants exceptional First Amendment solicitude for copy-
`righted works that were once in the public domain. Congress has
`several times adjusted copyright law to protect new categories of
`works as well as works previously in the public domain. Section 514,
`moreover, does not impose a blanket prohibition on public access.
`The question is whether would-be users of certain foreign works must
`pay for their desired use of the author’s expression, or else limit their
`exploitation to “fair use” of those works. By fully implementing
`Berne, Congress ensured that these works, like domestic and most
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`other foreign works, would be governed by the same legal regime.
`
`Section 514 simply placed foreign works in the position they would
`
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`have occupied if the current copyright regime had been in effect when
`those works were created and first published. Pp. 26–30.
`609 F. 3d 1076, affirmed.
`GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
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` C. J., and SCALIA, KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined.
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`BREYER, J., filed a dissenting opinion, in which ALITO, J., joined. KA-
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`GAN, J., took no part in the consideration or decision of the case.
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` Cite as: 565 U. S. ____ (2012)
`
`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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`_________________
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` No. 10–545
`_________________
`
`
` LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H.
` HOLDER, JR., ATTORNEY GENERAL, ET AL.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE TENTH CIRCUIT
`[January 18, 2012]
` JUSTICE GINSBURG delivered the opinion of the Court.
`The Berne Convention for the Protection of Literary and
`
`Artistic Works (Berne Convention or Berne), which took
`effect in 1886, is the principal accord governing interna-
`tional copyright relations. Latecomer to the international
`copyright regime launched by Berne, the United States
`joined the Convention in 1989. To perfect U. S. implemen-
`
`tation of Berne, and as part of our response to the Uru-
`guay Round of multilateral trade negotiations, Congress,
`in 1994, gave works enjoying copyright protection abroad
`the same full term of protection available to U. S. works.
`Congress did so in §514 of the Uruguay Round Agree-
`ments Act (URAA), which grants copyright protection to
`preexisting works of Berne member countries, protected in
`their country of origin, but lacking protection in the United
`
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`States for any of three reasons: The United States did
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`not protect works from the country of origin at the time of
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`publication; the United States did not protect sound record-
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`ings fixed before 1972; or the author had failed to comply
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`with U. S. statutory formalities (formalities Congress no
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`longer requires as prerequisites to copyright protection).
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`The URAA accords no protection to a foreign work after
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`2
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`GOLAN v. HOLDER
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`Opinion of the Court
`its full copyright term has expired, causing it to fall into
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`the public domain, whether under the laws of the country
`of origin or of this country. Works encompassed by §514
`are granted the protection they would have enjoyed had
`the United States maintained copyright relations with the
`author’s country or removed formalities incompatible with
`
`Berne. Foreign authors, however, gain no credit for the
`protection they lacked in years prior to §514’s enactment.
`They therefore enjoy fewer total years of exclusivity than
`do their U. S. counterparts. As a consequence of the barri-
`ers to U. S. copyright protection prior to the enactment of
`§514, foreign works “restored” to protection by the meas-
`ure had entered the public domain in this country. To
`cushion the impact of their placement in protected status,
`Congress included in §514 ameliorating accommodations
`for parties who had exploited affected works before the
`URAA was enacted.
`
`Petitioners include orchestra conductors, musicians, pub-
`lishers, and others who formerly enjoyed free access to
`works §514 removed from the public domain. They main-
`tain that the Constitution’s Copyright and Patent Clause,
`Art. I, §8, cl. 8, and First Amendment both decree the
`invalidity of §514. Under those prescriptions of our high-
`est law, petitioners assert, a work that has entered the
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`public domain, for whatever reason, must forever remain
`there.
`
`In accord with the judgment of the Tenth Circuit, we
`conclude that §514 does not transgress constitutional
`limitations on Congress’ authority. Neither the Copyright
`and Patent Clause nor the First Amendment, we hold,
`makes the public domain, in any and all cases, a territory
`that works may never exit.
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`I
`A
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`Members of the Berne Union agree to treat authors from
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`other member countries as well as they treat their own.
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`3
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`Cite as: 565 U. S. ____ (2012)
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`Opinion of the Court
`Berne Convention, Sept. 9, 1886, as revised at Stockholm
`on July 14, 1967, Art. 1, 5(1), 828 U. N. T. S. 221, 225,
`231–233. Nationals of a member country, as well as any
`author who publishes in one of Berne’s 164 member states,
`thus enjoy copyright protection in nations across the globe.
`Art. 2(6), 3. Each country, moreover, must afford at least
`the minimum level of protection specified by Berne. The
`copyright term must span the author’s lifetime, plus at
`least 50 additional years, whether or not the author has
`complied with a member state’s legal formalities. Art.
`5(2), 7(1). And, as relevant here, a work must be protected
`abroad unless its copyright term has expired in either the
`country where protection is claimed or the country of
`origin. Art. 18(1)–(2).1
`
`A different system of transnational copyright protection
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`long prevailed in this country. Until 1891, foreign works
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`were categorically excluded from Copyright Act protection.
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`Throughout most of the 20th century, the only eligible
`foreign authors were those whose countries granted recip-
`rocal rights to U. S. authors and whose works were print
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`——————
`1Article 18 of the Berne Convention provides:
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`“(1) This Convention shall apply to all works which, at the moment of
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`its coming into force, have not yet fallen into the public domain in the
`country of origin through the expiry of the term of protection.
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`“(2) If, however, through the expiry of the term of protection which
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`was previously granted, a work has fallen into the public domain of the
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`country where protection is claimed, that work shall not be protected
`anew.
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`“(3) The application of this principle shall be subject to any provisions
`contained in special conventions to that effect existing or to be conclud-
`ed between countries of the Union. In the absence of such provisions,
`the respective countries shall determine, each in so far as it is con-
`cerned, the conditions of application of this principle.
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`“(4) The preceding provisions shall also apply in the case of new
`accessions to the Union and to cases in which protection is extended by
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`the application of Article 7 or by the abandonment of reservations.”
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`828 U. N. T. S. 251.
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`4
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`GOLAN v. HOLDER
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`Opinion of the Court
`ed in the United States. See Act of Mar. 3, 1891, §3, 13, 26
`Stat. 1107, 1110; Patry, The United States and Inter-
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`national Copyright Law, 40 Houston L. Rev. 749, 750
`(2003).2 For domestic and foreign authors alike, protection
`hinged on compliance with notice, registration, and re-
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`newal formalities.
`
`The United States became party to Berne’s multilateral,
`formality-free copyright regime in 1989. Initially, Con-
`gress adopted a “minimalist approach” to compliance with
`the Convention. H. R. Rep. No. 100–609, p. 7 (1988) (here-
`inafter BCIA House Report). The Berne Convention Im-
`plementation Act of 1988 (BCIA), 102 Stat. 2853, made
`“only those changes to American copyright law that [were]
`clearly required under the treaty’s provisions,” BCIA
`House Report, at 7. Despite Berne’s instruction that
`member countries—including “new accessions to the Union”—
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`protect foreign works under copyright in the country
`of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the
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`BCIA accorded no protection for “any work that is in the
`public domain in the United States,” §12, 102 Stat. 2860.
`Protection of future foreign works, the BCIA indicated,
`satisfied Article 18. See §2(3), 102 Stat. 2853 (“The
`amendments made by this Act, together with the law as it
`exists on the date of the enactment of this Act, satisfy the
`obligations of the United States in adhering to the Berne
`Convention . . . .”). Congress indicated, however, that it
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`——————
` 2As noted by the Government’s amici, the United States excluded
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`foreign works from copyright not to swell the number of unprotected
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` works available to the consuming public, but to favor domestic publish-
` ing interests that escaped paying royalties to foreign authors. See Brief
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` for International Publishers Association et al. as Amici Curiae 8–15.
`This free-riding, according to Senator Jonathan Chace, champion of the
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`1891 Act, made the United States “the Barbary coast of literature” and
`its people “the buccaneers of books.” S. Rep. No. 622, 50th Cong., 1st
`Sess., p. 2 (1888).
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`Cite as: 565 U. S. ____ (2012)
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`Opinion of the Court
`had not definitively rejected “retroactive” protection for
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`preexisting foreign works; instead it had punted on this
`issue of Berne’s implementation, deferring consideration
`until “a more thorough examination of Constitutional,
`commercial, and consumer considerations is possible.”
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`BCIA House Report, at 51, 52.3
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`The minimalist approach essayed by the United States
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`did not sit well with other Berne members.4 While negoti-
`——————
`3See also S. Rep. No. 103–412, p. 225 (1994) (“While the United
`States declared its compliance with the Berne Convention in 1989, it
`never addressed or enacted legislation to implement Article 18 of
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`
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` the Convention.”); Memorandum from Chris Schroeder, Counselor to the
`Assistant Attorney General, Office of Legal Counsel, Dept. of Justice
`(DOJ), to Ira S. Shapiro, General Counsel, Office of the U. S. Trade
`Representative (July 29, 1994), in W. Patry, Copyright and the GATT,
`p. C–15 (1995) (“At the time Congress was debating the BCIA, it
`reserved the issue of removing works from the public domain.”); Gen-
`eral Agreement on Tariffs and Trade (GATT): Intellectual Property
`Provisions, Joint Hearing before the Subcommittee on Intellectual
`Property and Judicial Administration of the House Committee on the
`Judiciary and the Subcommittee on Patents, Copyrights and Trade-
` marks of the Senate Committee on the Judiciary, 103d Cong., 2d
`
`
`
` Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce
` A. Lehman, Assistant Secretary of Commerce and Commissioner of
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`Patents and Trademarks (Commerce Dept.)) (“When the United States
`adhered to the Berne Convention, Congress . . . acknowledged that the
`possibility of restoring copyright protection for foreign works that had
`fallen into the public domain in the United States for failure to comply
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` with formalities was an issue that merited further discussion.”).
`4The dissent implicitly agrees that, whatever tentative conclusion
`
`Congress reached in 1988, Article 18 requires the United States to
`“protect the foreign works at issue,” at least absent a special conven-
`
`
` tion the United States did not here negotiate. Post, at 22. See
` also post, at 23 (citing Gervais, Golan v. Holder: A Look at the Con-
`
`
` straints Imposed by the Berne Convention, 64 Vand. L. Rev. En Banc
`147, 151–152 (2011)); id., at 152 (“[T]he Convention clearly requires
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` that some level of protection be given to foreign authors whose works
` have entered the public domain (other than by expiration of previous
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`copyright).”). Accord S. Ricketson, The Berne Convention for the
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`Protection of Literary and Artistic Works 1886–1986, p. 675 (1987)
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`5
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`GOLAN v. HOLDER
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`Opinion of the Court
`ations were ongoing over the North American Free Trade
`Agreement (NAFTA), Mexican authorities complained
`about the United States’ refusal to grant protection, in
`accord with Article 18, to Mexican works that remained
`under copyright domestically. See Intellectual Property
`and International Issues, Hearings before the Subcommit-
`tee on Intellectual Property and Judicial Administration,
`House Committee on the Judiciary, 102d Cong., 1st Sess.,
`168 (1991) (statement of Ralph Oman, U. S. Register of
`Copyrights).5 The Register of Copyrights also reported
`“questions” from Turkey, Egypt, and Austria. Ibid. Thai-
`land and Russia balked at protecting U. S. works, copy-
`righted here but in those countries’ public domains, until
`the United States reciprocated with respect to their au-
`
`thors’ works. URAA Joint Hearing 137 (statement of Ira
`S. Shapiro, General Counsel, Office of the U. S. Trade
`Representative (USTR)); id., at 208 (statement of Profes-
`sor Shira Perlmutter); id., at 291 (statement of Jason S.
`Berman, Recording Industry Association of America
`(RIAA)).6
`
`——————
`(“There is no basis on which [protection of existing works under Article
`18] can be completely denied. The conditions and reservations,” au-
`
` thorized by Article 18(3) [and stressed by the dissent, post, at 23–24]
`are of “limited” and “transitional” duration and “would not be permitted
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`to deny [protection] altogether in relation to a particular class . . . of
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` works.”).
`5NAFTA ultimately included a limited retroactivity provision—a
`precursor to §514 of the URAA—granting U. S. copyright protection to
`certain Mexican and Canadian films. These films had fallen into the
`public domain, between 1978 and 1988, for failure to meet U. S. notice
`requirements. See North American Free Trade Agreement Implemen-
`tation Act, §334, 107 Stat. 2115; Brief for Franklin Pierce Center for
`
`Intellectual Property as Amicus Curiae 14–16. One year later, Con-
`
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`gress replaced this provision with the version of 17 U. S. C. §104A at
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`
`issue here. See 3 M. Nimmer & D. Nimmer, Copyright §9A.03, 9A.04,
`pp. 9A–17, 9A–22 (2011) (hereinafter Nimmer).
`6This tension between the United States and its new Berne counter
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`Cite as: 565 U. S. ____ (2012)
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`Opinion of the Court
`Berne, however, did not provide a potent enforcement
`
`mechanism. The Convention contemplates dispute resolu-
`tion before the International Court of Justice. Art. 33(1).
`
`But it specifies no sanctions for noncompliance and allows
`parties, at any time, to declare themselves “not . . . bound”
`by the Convention’s dispute resolution provision. Art.
`33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en-
`forcement actions were launched before 1994. D. Gervais,
`The TRIPS Agreement 213, and n. 134 (3d ed. 2008).
`
`Although “several Berne Union Members disagreed with
`[our] interpretation of Article 18,” the USTR told Con-
`gress, the Berne Convention did “not provide a meaningful
`dispute resolution process.” URAA Joint Hearing 137
`(statement of Shapiro). This shortcoming left Congress
`“free to adopt a minimalist approach and evade Article
`18.” Karp, Final Report, Berne Article 18 Study on Retro-
`
`active United States Copyright Protection for Berne and
`other Works, 20 Colum.-VLA J. L. & Arts 157, 172 (1996).
`The landscape changed in 1994. The Uruguay round of
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`multilateral trade negotiations produced the World Trade
`Organization (WTO) and the Agreement on Trade-Related
`Aspects of Intellectual Property Rights (TRIPS).7 The
`United States joined both. TRIPS mandates, on pain of
`WTO enforcement, implementation of Berne’s first 21
`articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring
`adherence to all but the “moral rights” provisions of Arti-
`cle 6bis). The WTO gave teeth to the Convention’s re-
`quirements: Noncompliance with a WTO ruling could
`
`——————
`parties calls into question the dissent’s assertion that, despite the 1988
`
`Act’s minimalist approach, “[t]he United States obtained the benefits of
` Berne for many years.” Post, at 22–23. During this six-year period,
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`Congress had reason to doubt that U. S. authors enjoyed the full
`benefits of Berne membership.
`7Marrakesh Agreement Establishing the World Trade Organization,
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`Apr. 15, 1994, 1867 U. N. T. S. 154.
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`7
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`8
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`GOLAN v. HOLDER
`
`Opinion of the Court
`subject member countries to tariffs or cross-sector retalia-
`tion. See Gervais, supra, at 213; 7 W. Patry, Copyright
`§24:1, pp. 24–8 to 24–9 (2011). The specter of WTO en-
`forcement proceedings bolstered the credibility of our
`
`trading partners’ threats to challenge the United States
`for inadequate compliance with Article 18. See URAA
`Joint Hearing 137 (statement of Shapiro, USTR) (“It is
`likely that other WTO members would challenge the
`current U. S. implementation of Berne Article 18 under
`[WTO] procedures.”).8
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`Congress’ response to the Uruguay agreements put to
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`rest any questions concerning U. S. compliance with Arti-
`cle 18. Section 514 of the URAA, 108 Stat. 4976 (codified
`at 17 U. S. C. §104A, 109(a)),9 extended copyright to works
`that garnered protection in their countries of origin,10 but
`——————
`8Proponents of prompt congressional action urged that avoiding a
`trade enforcement proceeding—potentially the WTO’s first—would be
`instrumental in preserving the United States’ “reputation as a world
`leader in the copyright field.” URAA Joint Hearing 241 (statement of
`Eric Smith, International Intellectual Property Alliance (IIPA)). In this
`regard, U. S. negotiators reported that widespread perception of U. S.
`noncompliance was undermining our leverage in copyright negotia-
`
`tions. Unimpeachable adherence to Berne, Congress was told, would
`help ensure enhanced foreign protection, and hence profitable dissemi-
`
`nation, for existing and future U. S. works. See id., at 120 (app. to
`statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro-
`active] protection for existing works in our own law will improve our
`position in future negotiations.”); id., at 268 (statement of Berman,
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`RIAA).
`9Title 17 U. S. C. §104A is reproduced in full in an appendix to this
`opinion.
`10Works from most, but not all, foreign countries are eligible for pro-
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`tection under §514. The provision covers only works that have “at least
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`one author or rightholder who was, at the time the work was created,
` 17 U. S. C.
`a national or domiciliary of an eligible country.”
`
`§104A(h)(6)(D). An “eligible country” includes any “nation, other than
`
`the United States, that—(A) becomes a WTO member country after the
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`date of the enactment of the [URAA]; [or] (B) on such date of enactment
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`Cite as: 565 U. S. ____ (2012)
`
`Opinion of the Court
`had no right to exclusivity in the United States for any
`
`of three reasons: lack of copyright relations between the
`country of origin and the United States at the time of
`publication; lack of subject-matter protection for sound
`recordings fixed before 1972; and failure to comply with
`U. S. statutory formalities (e.g., failure to provide notice of
`copyright status, or to register and renew a copyright).
`See §104A(h)(6)(B)–(C).11
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`Works that have fallen into the public domain after the
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`
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`——————
`is, or after such date of enactment becomes, a nation adhering to
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`the Berne Convention.” §104A(h)(3). As noted above, see supra,
`at 3, 164 countries adhere to the Berne Convention. World Intellec-
`
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`tual Property Organization, Contracting Parties: Berne Convention,
`www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s
`case file).
`
`11From the first Copyright Act until late in the 20th century, Con-
`gress conditioned copyright protection on compliance with certain
`statutory formalities. The most notable required an author to register
`her work, renew that registration, and affix to published copies notice
`of copyrighted status. The formalities drew criticism as a trap for the
`
` unwary. See, e.g., 2 Nimmer §7.01[A], p. 7–8; Doyle, Cary, McCannon,
`& Ringer, Notice of Copyright, Study No. 7, p. 46 (1957), reprinted in
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`1 Studies on Copyright 229, 272 (1963).
`
`In 1976, Congress eliminated the registration renewal requirement
`for future works. Copyright Act of 1976, §302, 408, 90 Stat. 2572, 2580.
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`In 1988, it repealed the mandatory notice prerequisite. BCIA §7, 102
`Stat. 2857. And in 1992, Congress made renewal automatic for works
`still in their first term of protection. Copyright Amendments Act of
`1992, 106 Stat. 264–266. The Copyright Act retains, however, incen-
`tives for authors to register their works and provide notice of the works’
`
`
` copyrighted status. See, e.g., 17 U. S. C. §405(b) (precluding actual and
`statutory damages against “innocent infringers” of a work that lacked
`notice of copyrighted status); §411(a) (requiring registration of U. S.
`
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`“work[s],” but not foreign works, before an owner may sue for infringe-
`ment). The revisions successively made accord with Berne Convention
`
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`Article 5(2), which proscribes application of copyright formalities to
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`foreign authors. Berne, however, affords domestic authors no escape
`from domestic formalities. See Art. 5(3) (protection within country of
`origin is a matter of domestic law).
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`9
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`10
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`GOLAN v. HOLDER
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`Opinion of the Court
`expiration of a full copyright term—either in the United
`States or the country of origin—receive no further protec-
`tion under §514. Ibid.12 Copyrights “restored”13 under
`URAA §514 “subsist for the remainder of the term of
`copyright that the work would have otherwise been grant-
`ed . . . if the work never entered the public domain.”
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`§104A(a)(1)(B). Prospectively, restoration places foreign
`works on an equal footing with their U. S. counterparts;
`assuming a foreign and domestic author died the same
`day, their works will