Towards a Constitutionally Protected Public Domain

Elizabeth Townsend Gard, Tulane University of Louisiana

Abstract

How are we to understand the physics of the public domain within contemporary copyright law? Is the public domain a constitutionally protected component of the copyright system? The Golan decisions—first in the Tenth Circuit, Golan v. Gonzales, and now the remanded decision from the district court, Golan v. Holder, handed down on April 9, 2009—may provide an avenue towards a definitive answer. The Golan decisions mark the first time a part of the Copyright Act has been found to be unconstitutional. The case concerned the restoration of foreign copyrighted works in the U.S., but the decision could have larger implications for other amendments to the 1976 Copyright Act as well, regarding limitations and boundaries.