SUPREME COURT OF THE UNITED STATES GOLAN ET AL. v. HOLDER, ATTORNEY GENERAL, ET AL. 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 agreeto provide a minimum level of copyright protection and to treat authors from other member countries as well as they treat their own. Of central importance in this case, Article 18 of Berne requires countries 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 transnationalcopyright 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 rightsto American authors and whose works were printed in the UnitedStates. Despite Article 18, when the United States joined Berne in1989, it did not protect any foreign works lodged in the U. S. public domain, many of them works never protected here. In 1994, however, 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. Section 514 of the Uruguay Round Agreements Act (URAA) grants copyright protection to works protected in their country of origin, but lacking protection in the United States for any of three reasons: TheUnited States did not protect works from the country of origin at thetime of publication; the United States did not protect sound recordings fixed before 1972; or the author had not complied with certain
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U. S. statutory formalities. Works encompassed by §514 are grantedthe protection they would have enjoyed had the United States maintained copyright relations with the author's country or removed formalities 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 domain in this country. To cushion the impact of their placement inprotected status, §514 provides ameliorating accommodations for parties who had exploited affected works before the URAA wasenacted.
Petitioners are orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works §514 removed from the public domain. They maintain that Congress, in passing §514,exceeded its authority under the Copyright Clause and transgressedFirst Amendment limitations. The District Court granted the Attorney General's motion for summary judgment. Affirming in part, theTenth Circuit agreed that Congress had not offended the Copyright Clause, but concluded that §514 required further First Amendmentinspection in light of Eldred v. Ashcroft, 537 U. S. 186. On remand, the District Court granted summary judgment to petitioners on theFirst Amendment claim, holding that §514's constriction of the publicdomain was not justified by any of the asserted federal interests. The Tenth Circuit reversed, ruling that §514 was narrowly tailored to fitthe important government aim of protecting U. S. copyright holders' interests abroad.
Held:
1. Section 514 does not exceed Congress' authority under the Copyright Clause. Pp. 13–23.
(a) The text of the Copyright Clause does not exclude applicationof copyright protection to works in the public domain. Eldred is largely dispositive of petitioners' claim that the Clause's confinementof a copyright's lifespan to a “limited Tim[e]” prevents the removal ofworks from the public domain. In Eldred, the Court upheld the Copyright Term Extension Act (CTEA), which extended, by 20 years, the terms of existing copyrights. The text of the Copyright Clause, theCourt observed, contains no “command that a time prescription, onceset, becomes forever ‘fixed' or ‘inalterable,' ” and the Court declined to infer any such command. 537 U. S., at 199. The construction petitioners tender here is similarly infirm. The terms afforded works restored by §514 are no less “limited” than those the CTEA lengthened. Nor had the “limited Tim[e]” already passed for the works at issuehere—many of them works formerly denied any U. S. copyright protection—for a period of exclusivity must begin before it may end. Petitioners also urge that the Government's position would allow ConCite
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gress to legislate perpetual copyright terms by instituting successive“limited” terms as prior terms expire. But as in Eldred, such hypothetical misbehavior is far afield from this case. In aligning theUnited States with other nations bound by Berne, Congress can hardly be charged with a design to move stealthily toward a perpetualcopyright regime. Pp. 13–15.
(b)
Historical practice corroborates the Court's reading of the Copyright Clause to permit the protection of previously unprotectedworks. In the Copyright Act of 1790, the First Congress protectedworks that had been freely reproducible under State copyright laws.Subsequent actions confirm that Congress has not understood the Copyright Clause to preclude protection for existing works. Several private bills restored the copyrights and patents of works and inventions previously in the public domain. Congress has also passed generally 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 already created, it cannot meet the Clause's objective. The creation of new works, however, is not the sole way Congress may promote“Science,” i.e., knowledge and learning. In Eldred, this Court rejecteda nearly identical argument, concluding that the Clause does not demand that each copyright provision, examined discretely, operate toinduce new works. Rather the Clause “empowers Congress to determine 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, confines the “Progress of Science” exclusively to “incentives for creation.” Historical evidence, congressional practice, and this Court's decisions, in fact, suggest that inducing the dissemination of existingworks is an appropriate means to promote science. Pp. 20–22.
(d)
Considered against this backdrop, §514 falls comfortably withinCongress' Copyright Clause authority. Congress had reason to believe that a well-functioning international copyright system would encourage the dissemination of existing and future works. And testimony informed Congress that full compliance with Berne would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, thus benefitting copyright-intensive industries stateside and inducing greater investment 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.
2. The First Amendment does not inhibit the restoration author4
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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 guarantee. 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 limiton the manner in which expressive works may be used, but also as an“engine of free expression.” 537 U. S., at 219. The “traditional contours” of copyright protection, i.e., the “idea/expression dichotomy” and the “fair use” defense, moreover, serve as “built-in First Amendment accommodations.” Ibid. Given the speech-protective purposes and safeguards embraced by copyright law, there was no call for theheightened review sought in Eldred. The Court reaches the same conclusion here. Section 514 leaves undisturbed the idea/expressiondistinction and the fair use defense. Moreover, Congress adoptedmeasures to ease the transition from a national scheme to an international copyright regime. Pp. 23–26.
(b)
Petitioners claim that First Amendment interests of a higherorder are at stake because they—unlike their Eldred counterparts—enjoyed “vested rights” in works that had already entered the publicdomain. Their contentions depend on an argument already considered and rejected, namely, that the Constitution renders the public domain largely untouchable by Congress. Nothing in the historicalrecord, subsequent congressional practice, or this Court's jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain. Congress has several times adjusted copyright law to protect new categories ofworks 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 mustpay for their desired use of the author's expression, or else limit their exploitation to “fair use” of those works. By fully implementingBerne, Congress ensured that these works, like domestic and mostother foreign works, would be governed by the same legal regime. Section 514 simply placed foreign works in the position they would have occupied if the current copyright regime had been in effect whenthose 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,
C. J., and SCALIA, KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion, in which ALITO, J., joined. KA-GAN, J., took no part in the consideration or decision of the case.
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NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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 andArtistic Works (Berne Convention or Berne), which tookeffect in 1886, is the principal accord governing international copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implementation of Berne, and as part of our response to the Uruguay Round of multilateral trade negotiations, Congress,in 1994, gave works enjoying copyright protection abroadthe same full term of protection available to U. S. works.Congress did so in §514 of the Uruguay Round Agreements Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected intheir country of origin, but lacking protection in the UnitedStates for any of three reasons: The United States didnot protect works from the country of origin at the time ofpublication; the United States did not protect sound recordings fixed before 1972; or the author had failed to complywith U. S. statutory formalities (formalities Congress nolonger requires as prerequisites to copyright protection).
The URAA accords no protection to a foreign work after
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its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the countryof origin or of this country. Works encompassed by §514are granted the protection they would have enjoyed hadthe United States maintained copyright relations with the author's country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for theprotection 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 barriers to U. S. copyright protection prior to the enactment of §514, foreign works “restored” to protection by the measure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in §514 ameliorating accommodationsfor parties who had exploited affected works before the URAA was enacted.
Petitioners include orchestra conductors, musicians, publishers, and others who formerly enjoyed free access toworks §514 removed from the public domain. They maintain 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 highest law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remainthere.
In accord with the judgment of the Tenth Circuit, weconclude 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.
I
A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own.
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Berne Convention, Sept. 9, 1886, as revised at Stockholmon 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 leastthe minimum level of protection specified by Berne. The copyright term must span the author's lifetime, plus atleast 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 protectionlong prevailed in this country. Until 1891, foreign workswere categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted reciprocal rights to U. S. authors and whose works were print
—————— 1Article 18 of the Berne Convention provides: “(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in thecountry of origin through the expiry of the term of protection. “(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of thecountry where protection is claimed, that work shall not be protected anew. “(3) The application of this principle shall be subject to any provisionscontained in special conventions to that effect existing or to be concluded between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is concerned, the conditions of application of this principle. “(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 the application of Article 7 or by the abandonment of reservations.”828 U. N. T. S. 251.
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ed in the United States. See Act of Mar. 3, 1891, §3, 13, 26 Stat. 1107, 1110; Patry, The United States and International Copyright Law, 40 Houston L. Rev. 749, 750(2003).2 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and renewal formalities.
The United States became party to Berne's multilateral, formality-free copyright regime in 1989. Initially, Congress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100–609, p. 7 (1988) (hereinafter BCIA House Report). The Berne Convention Implementation Act of 1988 (BCIA), 102 Stat. 2853, made “only those changes to American copyright law that [were] clearly required under the treaty's provisions,” BCIAHouse Report, at 7. Despite Berne's instruction thatmember countries—including “new accessions to the Union”—protect foreign works under copyright in the countryof origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in thepublic 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 itexists on the date of the enactment of this Act, satisfy theobligations of the United States in adhering to the Berne Convention . . . .”). Congress indicated, however, that it
—————— 2As noted by the Government's amici, the United States excluded foreign works from copyright not to swell the number of unprotected works available to the consuming public, but to favor domestic publishing interests that escaped paying royalties to foreign authors. See Brief for International Publishers Association et al. as Amici Curiae 8–15. This free-riding, according to Senator Jonathan Chace, champion of the 1891 Act, made the United States “the Barbary coast of literature” andits people “the buccaneers of books.” S. Rep. No. 622, 50th Cong., 1st Sess., p. 2 (1888).
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had not definitively rejected “retroactive” protection forpreexisting foreign works; instead it had punted on thisissue of Berne's implementation, deferring consideration until “a more thorough examination of Constitutional,commercial, and consumer considerations is possible.”BCIA House Report, at 51, 52.3
The minimalist approach essayed by the United Statesdid not sit well with other Berne members.4 While negoti——————
3See also S. Rep. No. 103–412, p. 225 (1994) (“While the UnitedStates declared its compliance with the Berne Convention in 1989, itnever addressed or enacted legislation to implement Article 18 ofthe Convention.”); Memorandum from Chris Schroeder, Counselor to theAssistant 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, itreserved the issue of removing works from the public domain.”); General Agreement on Tariffs and Trade (GATT): Intellectual PropertyProvisions, Joint Hearing before the Subcommittee on IntellectualProperty and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trademarks of the Senate Committee on the Judiciary, 103d Cong., 2dSess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce
A.
Lehman, Assistant Secretary of Commerce and Commissioner ofPatents and Trademarks (Commerce Dept.)) (“When the United Statesadhered to the Berne Convention, Congress . . . acknowledged that the possibility of restoring copyright protection for foreign works that hadfallen into the public domain in the United States for failure to complywith 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 Constraints Imposed by the Berne Convention, 64 Vand. L. Rev. En Banc 147, 151–152 (2011)); id., at 152 (“[T]he Convention clearly requires that some level of protection be given to foreign authors whose works have entered the public domain (other than by expiration of previous copyright).”). Accord S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 1886–1986, p. 675 (1987)
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ations were ongoing over the North American Free TradeAgreement (NAFTA), Mexican authorities complainedabout the United States' refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Propertyand International Issues, Hearings before the Subcommittee on Intellectual Property and Judicial Administration,House Committee on the Judiciary, 102d Cong., 1st Sess., 168 (1991) (statement of Ralph Oman, U. S. Register ofCopyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Ibid. Thailand and Russia balked at protecting U. S. works, copyrighted here but in those countries' public domains, until the United States reciprocated with respect to their authors' works. URAA Joint Hearing 137 (statement of Ira
S. Shapiro, General Counsel, Office of the U. S. TradeRepresentative (USTR)); id., at 208 (statement of Professor 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,” authorized by Article 18(3) [and stressed by the dissent, post, at 23–24] are of “limited” and “transitional” duration and “would not be permittedto deny [protection] altogether in relation to a particular class . . . of works.”). 5NAFTA ultimately included a limited retroactivity provision—aprecursor 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. noticerequirements. See North American Free Trade Agreement Implementation Act, §334, 107 Stat. 2115; Brief for Franklin Pierce Center for Intellectual Property as Amicus Curiae 14–16. One year later, Congress replaced this provision with the version of 17 U. S. C. §104A atissue 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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Berne, however, did not provide a potent enforcementmechanism. The Convention contemplates dispute resolution 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 enforcement 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 Congress, the Berne Convention did “not provide a meaningfuldispute 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 Retroactive 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 multilateral trade negotiations produced the World TradeOrganization (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 21articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Article 6bis). The WTO gave teeth to the Convention's requirements: 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 ofBerne for many years.” Post, at 22–23. During this six-year period, Congress had reason to doubt that U. S. authors enjoyed the full benefits of Berne membership. 7Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U. N. T. S. 154.
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subject member countries to tariffs or cross-sector retaliation. See Gervais, supra, at 213; 7 W. Patry, Copyright §24:1, pp. 24–8 to 24–9 (2011). The specter of WTO enforcement proceedings bolstered the credibility of our trading partners' threats to challenge the United Statesfor inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge thecurrent U. S. implementation of Berne Article 18 under[WTO] procedures.”).8
Congress' response to the Uruguay agreements put torest any questions concerning U. S. compliance with Article 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 worldleader 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 negotiations. Unimpeachable adherence to Berne, Congress was told, would help ensure enhanced foreign protection, and hence profitable dissemination, for existing and future U. S. works. See id., at 120 (app. tostatement of Lehman, Commerce Dept.) (“Clearly, providing for [retroactive] protection for existing works in our own law will improve our position in future negotiations.”); id., at 268 (statement of Berman, RIAA). 9Title 17 U. S. C. §104A is reproduced in full in an appendix to thisopinion. 10Works from most, but not all, foreign countries are eligible for protection under §514. The provision covers only works that have “at leastone author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country.” 17 U. S. C. §104A(h)(6)(D). An “eligible country” includes any “nation, other thanthe United States, that—(A) becomes a WTO member country after the date of the enactment of the [URAA]; [or] (B) on such date of enactment
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had no right to exclusivity in the United States for anyof three reasons: lack of copyright relations between the country of origin and the United States at the time ofpublication; 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 ofcopyright status, or to register and renew a copyright).See §104A(h)(6)(B)–(C).11
Works that have fallen into the public domain after the
—————— is, or after such date of enactment becomes, a nation adhering to the Berne Convention.” §104A(h)(3). As noted above, see supra, at 3, 164 countries adhere to the Berne Convention. World Intellectual 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, Congress conditioned copyright protection on compliance with certain statutory formalities. The most notable required an author to registerher work, renew that registration, and affix to published copies noticeof 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 in1 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.In 1988, it repealed the mandatory notice prerequisite. BCIA §7, 102 Stat. 2857. And in 1992, Congress made renewal automatic for worksstill in their first term of protection. Copyright Amendments Act of 1992, 106 Stat. 264–266. The Copyright Act retains, however, incentives 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 andstatutory damages against “innocent infringers” of a work that lacked notice of copyrighted status); §411(a) (requiring registration of U. S. “work[s],” but not foreign works, before an owner may sue for infringement). The revisions successively made accord with Berne Convention Article 5(2), which proscribes application of copyright formalities toforeign authors. Berne, however, affords domestic authors no escapefrom domestic formalities. See Art. 5(3) (protection within country oforigin is a matter of domestic law).
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expiration of a full copyright term—either in the United States or the country of origin—receive no further protection 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 granted . . . if the work never entered the public domain.”§104A(a)(1)(B). Prospectively, restoration places foreignworks on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the sameday, their works will enter the public domain simultaneously. See §302(a) (copyrights generally expire 70 years after the author's death). Restored works, however, receive no compensatory time for the period of exclusivitythey would have enjoyed before §514's enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works.
The URAA's disturbance of the public domain hardly escaped Congress' attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy anduse restored works for one year following §514's enactment. See 17 U. S. C. §104A(h)(2)(A). Concerns about §514's compatibility with the Fifth Amendment's Takings
—————— 12Title 17 U. S. C. §104A(h)(6)(B) defines a “restored work” to exclude “an original work of authorship” that is “in the public domain in itssource country through expiration of [its] term of protection.” This provision tracks Berne's denial of protection for any work that has “fallen into the public domain in the country of origin through theexpiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251. 13Restoration is a misnomer insofar as it implies that all works protected under §104A previously enjoyed protection. Each work in the public domain because of lack of national eligibility or subjectmatter protection, and many that failed to comply with formalities,never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer §9A.04[A][1][b][iii], at 9A–26, and n. 29.4.
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Clause led Congress to include additional protections for“reliance parties”—those who had, before the URAA's enactment, used or acquired a foreign work then in thepublic domain. See §104A(h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce—either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. §104A(c), (d)(2)(A)(i), and (B)(i). After that, reliance parties may continue to exploit existing copies for agrace period of one year. §104A(d)(2)(A)(ii), and (B)(ii).Finally, anyone who, before the URAA's enactment, created a “derivative work” based on a restored work mayindefinitely exploit the derivation upon payment to thecopyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. §104A(d)(3).
B In 2001, petitioners filed this lawsuit challenging §514.They maintain that Congress, when it passed the URAA,
exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District ——————
14A reliance party must have used the work in a manner that would constitute infringement had a valid copyright been in effect. See §104A(h)(4)(A). After restoration, the reliance party is limited to her previous uses. A performer of a restored work, for example, cannot,post-restoration, venture to sell copies of the script. See 3 Nimmer §9A.04[C][1][a], at 9A–45 to 9A–46.
15Petitioners' complaint also challenged the constitutionality of the Copyright Term Extension Act, 112 Stat. 2827, which added 20 years tothe duration of existing and future copyrights. After this Court rejected a similar challenge in Eldred v. Ashcroft, 537 U. S. 186 (2003), the District Court dismissed this portion of petitioners' suit on the pleadings, Golan v. Ashcroft, 310 F. Supp. 2d 1215 (D. Colo. 2004). The Tenth Circuit affirmed, Golan v. Gonzales, 501 F. 3d 1179 (2007), andpetitioners do not attempt to revive that claim in this Court, Pet. forCert. 7, n. 2. Neither have petitioners challenged the District Court's
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Court granted the Attorney General's motion for summaryjudgment. Golan v. Gonzales, No. Civ. 01–B–1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petitioners' Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunction about removing copyrightable materials from the public domain.” Id., at *14. The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns.” Id., at *17.
The Court of Appeals for the Tenth Circuit affirmed in part. Golan v. Gonzales, 501 F. 3d 1179 (2007). The public domain, it agreed, was not a “threshold that Congress” was powerless to “traverse in both directions.” Id., at 1187 (internal quotations marks omitted). But §514, asthe Court of Appeals read our decision in Eldred v. Ashcroft, 537 U. S. 186 (2003), required further First Amendment inspection, 501 F. 3d, at 1187. The measure “‘altered the traditional contours of copyright protection,'” the court said—specifically, the “bedrock principle” that once works enter the public domain, they do not leave. Ibid. (quoting Eldred, 537 U. S., at 221). The case was remanded with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit'sopinion.
On remand, the District Court's starting premise was uncontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government interest.” 611 F. Supp. 2d 1165, 1170–1171 (Colo. 2009) (quoting Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989)). Summary judgment was due petitioners, the
——————
entry of summary judgment for the Government on the claim that §514
violates the substantive component of the Due Process Clause.
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court concluded, because §514's constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protection for U. S. authors abroad, or remediation of the inequitable treatment suffered by foreign authors whose workslacked protection in the United States. 611 F. Supp. 2d, at 1172–1177.
The Tenth Circuit reversed. Deferring to Congress' predictive judgments in matters relating to foreign affairs,the appellate court held that §514 survived First Amendment scrutiny. Specifically, the court determined that thelaw was narrowly tailored to fit the important governmentaim of protecting U. S. copyright holders' interests abroad.609 F. 3d 1076 (2010).
We granted certiorari to consider petitioners' challengeto §514 under both the Copyright Clause and the First Amendment, 562 U. S. ___ (2011), and now affirm.
II We first address petitioners' argument that Congresslacked authority, under the Copyright Clause, to enact§514. The Constitution states that “Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. Petitioners find in this grant of authority an impenetrable barrier tothe extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause,historical practice, or our precedents.
A The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. Symposium, Congressional Power and LimitationsInherent in the Copyright Clause, 30 Colum. J. L. & Arts
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259, 266 (2007). Petitioners' contrary argument reliesprimarily on the Constitution's confinement of a copyright's lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘limited [t]imes' restriction by turning a fixed and predictableperiod into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22.
Our decision in Eldred is largely dispositive of petitioners' limited-time argument. There we addressed the question whether Congress violated the Copyright Clausewhen it extended, by 20 years, the terms of existing copyrights. 537 U. S., at 192–193 (upholding Copyright TermExtension Act (CTEA)). Ruling that Congress acted within constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time prescription, once set, becomes forever ‘fixed' or ‘inalterable.'” Id., at 199. “The word ‘limited,' ” we observed, “does not convey a meaning so constricted.” Ibid. Rather, the term is best understood to mean “confine[d] within certainbounds,” “restrain[ed],” or “circumscribed.” Ibid. (internalquotation marks omitted). The construction petitioners tender closely resembles the definition rejected in Eldred and is similarly infirm.
The terms afforded works restored by §514 are no less “limited” than those the CTEA lengthened. In light of Eldred, petitioners do not here contend that the termCongress has granted U. S. authors—their lifetimes, plus70 years—is unlimited. See 17 U. S. C. §302(a). Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed”and “confined.” See Eldred, 537 U. S., at 199. Indeed, as earlier noted, see supra, at 2, 10, the copyrights of restoredforeign works typically last for fewer years than those of their domestic counterparts.
The difference, petitioners say, is that the limited timehad already passed for works in the public domain. What
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was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petitioners respond. Brief for Petitioners 22 (works in question“received a specific term of protection . . . sometimes expressly set to zero”; “at the end of that period,” they “entered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] theterm at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a“limited time” of exclusivity must begin before it may end.16
Carried to its logical conclusion, petitioners persist, theGovernment's position would allow Congress to institute a second “limited” term after the first expires, a third afterthat, and so on. Thus, as long as Congress legislated ininstallments, perpetual copyright terms would be achievable. As in Eldred, the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See 537 U. S., at 198–200, 209–210. In aligning the UnitedStates with other nations bound by the Berne Convention,and thereby according equitable treatment to once disfavored foreign authors, Congress can hardly be chargedwith a design to move stealthily toward a regime of perpetual copyrights.
B Historical practice corroborates our reading of the Copyright Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514's disturbance of that domain, petitioners argue, distin-
—————— 16Cf. 3 Nimmer §9A.02[A][2], at 9A–11, n. 28 (“[I]t stretches the language of the Berne Convention past the breaking point to positthat following ‘expiry of the zero term' the . . . work need not beresurrected.”).
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guishes their suit from Eldred's. In adopting the CTEA,petitioners note, Congress acted in accord with “an unbroken congressional practice” of granting pre-expiration term extensions, 537 U. S., at 200. No comparable practice, they maintain, supports §514.
On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of1790 granted protection to many works previously in thepublic domain. Act of May 31, 1790 (1790 Act), §1, 1 Stat.124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States providedno statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply withformalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recognized, the “construction placed upon the Constitution by[the drafters of] the first [copyright] act of 1790 and theact of 1802 . . . men who were contemporary with [theConstitution's] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony,
—————— 17See B. Bugbee, Genesis of American Patent and Copyright Law 123–124 (1967) (hereinafter Bugbee) (Delaware, Maryland, and Pennsylvania). 18See 1783 Mass. Acts p. 236; 1783 N. J. Laws p. 47; 1783 N. H. Laws
p. 521; 1783 R. I. Laws pp. 6–7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch. VI; 1786 N. Y. Laws p. 298.
191783 Conn. Pub. Acts no. 617; 1783 N. J. Laws p. 47; 1785 N. C. Laws p. 563; 1786 Ga. Laws p. 323. In four States, copyright enforcement was restricted to works “not yet printed” or “hereinafter published.” 1783 Mass. Acts p. 236; 1783 N. H. Laws p. 521; 1783 R. I.Laws pp. 6–7; 1784 S. C. Acts p. 49.
20See Bugbee 109–123.
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111 U. S. 53, 57 (1884).21
Subsequent actions confirm that Congress has not understood the Copyright Clause to preclude protection forexisting works. Several private bills restored the copyrights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 57, 9 Stat. 763; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 618; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat.1396. These bills were unchallenged in court.
Analogous patent statutes, however, were upheld inlitigation.22 In 1808, Congress passed a private bill restoring patent protection to Oliver Evans' flour mill. When Evans sued for infringement, first Chief Justice Marshallin the Circuit Court, Evans v. Jordan, 8 F. Cas. 872 (No. 4,564) (Va. 1813), and then Justice Bushrod Washingtonfor this Court, Evans v. Jordan, 9 Cranch 199 (1815),upheld the restored patent's validity. After the patent's expiration, the Court said, “a general right to use [Evans']discovery was not so vested in the public” as to allow thedefendant to continue using the machinery, which he had
—————— 21The parties debate the extent to which the First Congress removed works from the public domain. We have held, however, that at least some works protected by the 1790 Act previously lacked protection. In Wheaton v. Peters, 8 Pet. 591 (1834), the Court ruled that before enactment of the 1790 Act, common-law copyright protection expired upon first publication. Id., at 657, 663. Thus published works covered by the 1790 Act previously would have been in the public domain unless protected by state statute. Had the founding generation perceived theconstitutional boundary petitioners advance today, the First Congresscould have designed a prospective scheme that left the public domainundisturbed. Accord Luck's Music Library, Inc. v. Gonzales, 407 F. 3d 1262, 1265 (CADC 2005) (Section 514 does not offend the Copyright Clause because, inter alia, “evidence from the First Congress,” asconfirmed by Wheaton, “points toward constitutionality.”). 22Here, as in Eldred, “[b]ecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice withrespect to patents informs our inquiry.” 537 U. S., at 201.
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constructed between the patent's expiration and the bill's passage. Id., at 202. See also Blanchard v. Sprague, 3
F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutionalauthority of congress” to “give a patent for an invention, which . . . was in public use and enjoyed by the communityat the time of the passage of the act.”).
This Court again upheld Congress' restoration of aninvention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its prior use by the inventor's employer. Absent such dispensation, the employer's use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor's leave. Id., at 206–209.
Congress has also passed generally applicable legislation granting patents and copyrights to inventions and works that had lost protection. An 1832 statute authorized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statutory formalities rendered the original patent “invalid orinoperative.” Act of July 3, §3, 4 Stat. 559. An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileges” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat.
743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection toforeign works that had fallen into the public domain during World Wars I and II. See Act of Dec. 18, 1919, ch. 11,
—————— 23Section 514 is in line with these measures; like them, it accords protection to works that had lapsed into the public domain because of failure to comply with U. S. statutory formalities. See supra, at 9, and
n. 11.
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41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732.24
Pointing to dictum in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966), petitioners would have uslook past this history. In Graham, we stated that “Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials alreadyavailable.” Id., at 6; post, at 15. But as we explained in Eldred, this passage did not speak to the constitutional limits on Congress' copyright and patent authority. Rather, it “addressed an invention's very eligibility for patent protection.” 537 U. S., at 202, n. 7.
Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Congress with extraordinary situations. Yet the TRIPS accord, leading the United States to comply in full measure with Berne, was also a signal event. See supra, at 7–8; cf. Eldred, 537 U. S., at 259, 264–265 (BREYER, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Convention). Given the authority we hold Congress has, we willnot second-guess the political choice Congress made between leaving the public domain untouched and embracing Berne unstintingly. Cf. id., at 212–213.
—————— 24Legislation of this order, petitioners argue, is best understood as anexercise of Congress' power to remedy excusable neglect. Even so, the remedy sheltered creations that, absent congressional action, would have been open to free exploitation. Such action, according to petitioners' dominant argument, see supra, at 13–14, is ever and always impermissible. Accord Luck's Music Library, 407 F. 3d, at 1265–1266 (“Plaintiffs urge that [the 1790 Act and the wartime legislation] simplyextended the time limits for filing and [did] not purport to modify theprohibition on removing works from the public domain. But to the extent that potential copyright holders failed to satisfy procedural requirements, such works”—like those protected by §514—“wouldnecessarily have already entered the public domain . . . .”).
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C
Petitioners' ultimate argument as to the Copyright andPatent Clause concerns its initial words. Congress isempowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protection. U. S. Const., Art. I, §8, cl. 8. Perhaps counterintuitively for the contemporary reader, Congress' copyrightauthority is tied to the progress of science; its patentauthority, to the progress of the useful arts. See Graham, 383 U. S., at 5, and n. 1; Evans, 8 F. Cas., at 873 (Marshall, J.).
The “Progress of Science,” petitioners acknowledge,refers broadly to “the creation and spread of knowledgeand learning.” Brief for Petitioners 21; accord post, at 1. They nevertheless argue that federal legislation cannot serve the Clause's aim unless the legislation “spur[s] the creation of . . . new works.” Brief for Petitioners 24; accord post, at 1–2, 8, 17. Because §514 deals solely with worksalready created, petitioners urge, it “provides no plausibleincentive to create new works” and is therefore invalid. Reply Brief 4.25
The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learning. In Eldred, we rejected an argument nearly identicalto the one petitioners rehearse. The Eldred petitionersurged that the “CTEA's extension of existing copyrights categorically fails to ‘promote the Progress of Science,' . . . because it does not stimulate the creation of new works.” 537 U. S., at 211–212. In response to this argument, we
—————— 25But see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); Eldred, 537 U. S., at 208, n. 15 (noting that Noah Webster “supported his entire family from theearnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)).
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held that the Copyright Clause does not demand that eachcopyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body's judgment, will serve the ends of the Clause.” Id., at 222. And those permissible ends, we held, extended beyond the creation of new works. See id., at 205–206 (rejecting the notion that “‘the only way to promote the progress of science [is] to provide incentivesto create new works'” (quoting Perlmutter, Participation inthe International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola(LA) L. Rev. 323, 332 (2002))).26
Even were we writing on a clean slate, petitioners' argument would be unavailing. Nothing in the text of theCopyright Clause confines the “Progress of Science” exclusively to “incentives for creation.” Id., at 324, n. 5 (internal quotation marks omitted). Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. See Nachbar, Constructing Copyright's Mythology, 6 Green Bag 2d 37, 44 (2002) (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotationmarks omitted)). Until 1976, in fact, Congress made“federal copyright contingent on publication[,] [thereby]
—————— 26The dissent also suggests, more tentatively, that at least where copyright legislation extends protection to works previously in the public domain, Congress must counterbalance that restriction with new incentives to create. Post, at 8. Even assuming the public domain werea category of constitutional significance, contra supra, at 13–19, we would not understand “the Progress of Science” to have this contingent meaning.
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providing incentives not primarily for creation,” but for dissemination. Perlmutter, supra, at 324, n. 5. Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U. S. 539, 558 (1985) (emphasis added). See also Eldred, 537 U. S., at 206.27
Considered against this backdrop, §514 falls comfortably within Congress' authority under the Copyright Clause. Congress rationally could have concluded that adherenceto Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyrightsystem would likely encourage the dissemination of existing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance withBerne, Congress had reason to believe, would expand theforeign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep.No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); id., at 244, 247 (statement of Smith, IIPA), thereby benefitting copyrightintensive industries stateside and inducing greater investment in the creative process.
The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Progress of Science.” See Perlmutter, supra, at 332 (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the
—————— 27That the same economic incentives might also induce the dissemination of futons, fruit, or Bibles, see post, at 20, is no answer to this evidence that legislation furthering the dissemination of literary property has long been thought a legitimate way to “promote the Progress of Science.”
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progress of science).28 Congress determined that exemplary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the rational judgment Congress made.
III
A
We next explain why the First Amendment does not inhibit the restoration authorized by §514. To do so, we first recapitulate the relevant part of our pathmarkingdecision in Eldred. The petitioners in Eldred, like those here, argued that Congress had violated not only the“limited Times” prescription of the Copyright Clause. In addition, and independently, the Eldred petitionerscharged, Congress had offended the First Amendment'sfreedom of expression guarantee. The CTEA's 20-yearenlargement of a copyright's duration, we held in Eldred, offended neither provision.
Concerning the First Amendment, we recognized thatsome restriction on expression is the inherent and intended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” 537 U. S., at 219, we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free expression[:] By establishing a marketable right to the use of
—————— 28The dissent suggests that the “utilitarian view of copyrigh[t]” embraced by Jefferson, Madison, and our case law sets us apart fromcontinental Europe and inhibits us from harmonizing our copyrightlaws with those of countries in the civil-law tradition. See post, at 5–6,
22. For persuasive refutation of that suggestion, see Austin, Does theCopyright Clause Mandate Isolationism? 26 Colum. J. L. & Arts 17, 59(2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with . . . America's international copyrightrelations over the last hundred or so years”).
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one's expression, copyright supplies the economic incentiveto create and disseminate ideas.” Ibid. (quoting Harper & Row, 471 U. S., at 558 (internal quotation marks omitted)); see id., at 546 (“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”).
We then described the “traditional contours” of copyright protection, i.e., the “idea/expression dichotomy” andthe “fair use” defense.29 Both are recognized in our jurisprudence as “built-in First Amendment accommodations.” Eldred, 537 U. S., at 219; see Harper & Row, 471 U. S., at 560 (First Amendment protections are “embodied in theCopyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by thefair use defense).
The idea/expression dichotomy is codified at 17 U. S. C. §102(b): “In no case does copyright protec[t] . . . any idea,procedure, process, system, method of operation, concept, principle, or discovery . . . described, explained, illustrated, or embodied in [the copyrighted] work.” “Due to this [idea/expression] distinction, every idea, theory, and factin a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author's expression alone gains copyright protection. Eldred, 537 U. S., at 219; see Harper & Row, 471 U. S., at 556 (“idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression” (internal quotation
—————— 29On the initial appeal in this case, the Tenth Circuit gave an unconfined reading to our reference in Eldred to “traditional contours of copyright.” 501 F. 3d, at 1187–1196. That reading was incorrect, as we here clarify.
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marks omitted)).
The second “traditional contour,” the fair use defense, is codified at 17 U. S. C. §107: “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting,teaching (including multiple copies for classroom use),scholarship, or research, is not an infringement of copyright.” This limitation on exclusivity “allows the public touse not only facts and ideas contained in a copyrighted work, but also [the author's] expression itself in certain circumstances.” Eldred, 537 U. S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholarship and comment, . . . even for parody” (internal quotation marks omitted)).
Given the “speech-protective purposes and safeguards” embraced by copyright law, see id., at 219, we concluded in Eldred that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 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 international copyright regime: It deferred the date from which enforcement runs,and it cushioned the impact of restoration on “relianceparties” who exploited foreign works denied protection before §514 took effect. See supra, at 10–11 (describing 17
U. S. C. §104A(c), (d), and (h)). See also Eldred, 537 U. S., at 220 (describing supplemental allowances and exemp-
—————— 30See Eldred, 537 U. S., at 221 (“Protection of [an author's originalexpression from unrestricted exploitation] does not raise the free speechconcerns present when the government compels or burdens the communication of particular facts or ideas.”). 31Focusing narrowly on the specific problem of orphan works, the dissent overlooks these principal protections against “the dissemination-restricting harms of copyright.” Post, at 14.
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tions available to certain users to mitigate the CTEA'simpact).
B Petitioners attempt to distinguish their challenge fromthe one turned away in Eldred. First Amendment interests of a higher order are at stake here, petitioners say, because they—unlike their counterparts in Eldred— enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain undercopyright law's “built-in safeguards” are, in their view, nosubstitute for the unlimited use they enjoyed before §514's enactment. Nor, petitioners urge, does §514's “unprecedented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Eldred. Brief for Petitioners 42–43. However spun, these contentions depend on an argument we considered and rejected above, namely, that theConstitution renders the public domain largely untouchable by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress' meansand ends. As we have already shown, see supra, at 13–19, the text of the Copyright Clause and the historical recordscarcely establish that “once a work enters the public domain,” Congress cannot permit anyone—“not even the creator—[to] copyright it,” 501 F. 3d, at 1184. And nothing in the historical record, congressional practice, or ourown jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the
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public domain.32 Neither this challenge nor that raised in Eldred, we stress, allege Congress transgressed a generally applicable First Ame
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