[License-discuss] Golan v. Holder

John Cowan cowan at mercury.ccil.org
Mon Jan 23 12:12:19 UTC 2012

Chris Travers scripsit:

> Is it just me or does Golan more or less read out of the Constitution
> any functional requirements regarding copyright law and read the
> copyright/patent clause basically as delegating unlimited power to
> Congress in this regard?

Perhaps not *just* you, but certainly not me.  It pretty much follows
on Eldred, and whereas I think Eldred was wrongly decided because of
its nose-in-the-tent effect, that's not happening here.  Why should an
Malaysian author receive no protection for his pre-1989 works in the U.S.
because his government couldn't be bothered to sign an international
copyright agreement?  Copyright terms are insanely long and getting
longer, but that does not mean they should be applied inequitably.
These works only fell into the public domain for essentially technical
reasons such as this.

> I mean can Congress now start allowing telephone directories to be
> copyrighted, since we no longer care about promoting the progress of
> anything?

The U.K. has the same "utilitarian" view of copyright we do, and yet
phone directories are copyrightable there, because they have accepted
the sweat-of-the-brow doctrine that our courts rejected.  There is
still plenty of scope for national law at the boundaries of copyright,
even with near-universal Berne applicability.

Note to David:  You're right, but Larry and I were speaking of U.S. law only.

You know, you haven't stopped talking           John Cowan
since I came here. You must have been           http://www.ccil.org/~cowan
vaccinated with a phonograph needle.            cowan at ccil.org
        --Rufus T. Firefly

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