The U.S. Court of Appeals for the District of Columbia has recently ruled that restoration of copyright by the Uruguay Round Agreements Act (URAA) for some works of foreign authors that had fallen into the public domain is not unconstitutional. Luck’s Music Library, Inc. v. Gonzales, Case No. 04-5240 (D.C. Cir. May 24, 2005) (Williams, J.).
Section 514 of the URAA establishes copyrights of foreign holders whose protected works fell into the public domain in the U.S. for various reasons (e.g., the United States failed to recognize copyrights of a particular nation, the copyright owner failed to comply with formalities of U.S. copyright law or, in the case of sound recordings "fixed" before February 15, 1972, federal copyright protection had been unavailable). According to the D.C. Circuit, the new act passes muster under the copyright and patent clause of the U.S. Constitution, in part because it provides an extra incentive for authors to create new works, consistent with the requirement that legislation must "promote the progress of science."
Using reasoning based on cases such as Eldred v. Ashcroft (in which the Supreme Court upheld extending copyright terms for protected works even though the extension might provide as little as seven cents total present value for authors working today), the court held that, even if indirect, the incentive provided by the URAA is sufficient to permit section 514 to pass constitutional scrutiny.
The Court reasoned (though not altogether persuasively) that there is no material distinction between extending a copyright term that is about to expire and providing copyright protection for a work that had it and lost it or never had it at all. In other words, there is no bright line rule that prohibits Congress from removing works from the public domain once they have fallen into it.
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