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Zombie Copyrights Survive First Amendment Attack

by Bruce Jobse

Expressions of ideas, such as books, music, photographs, paintings, movies, etc. are protected by US and international copyright laws, including a number of trade treaties to which the US is a signatory party. Through one of these treaties, the Uruguay Round Agreements Act, the US enacted section 514 (17 U.S.C. 104A) which allows for the “restoration” of copyright protection for foreign works that previously had passed into the public domain due to various informalities. The copyright protection for these works was “dead,” but suddenly came back to life, much like an arising zombie with a missing nose or ear, dragging its leg and moaning something about restricting further derivative works. Upset at the possibility of being terrorized by droves of zombie copyrights looking for a feast of royalty payments, a group of conductors, musicians and publishers, who had previously relied on the dead state of copyright protection for these works, filed suit in the US District Court of Colorado alleging that the restoration terms were too broad and severe. The US District Court agreed with the terrorized plaintiffs, ruling that section 514 violated the plaintiff’s freedom of expression under the First Amendment. On appeal however, the US Court of Appeals for the Tenth Circuit reversed the US District Court decision and remanded the case with instructions to grant summary judgment in favor of the US government.

Justifying their decision, the Court of Appeals noted that Section 514 affords foreign works the same protection that American works receive overseas, stating specifically “[T]he government has demonstrated a substantial interest in protecting American copyright holders’ interests abroad, and Section 514 is narrowly tailored to advance that interest.” As such, these foreign zombie copyrights are allowed to roam the American artistic landscape so that American zombie copyrights can roam unchallenged in foreign jurisdictions, a position in conformance with the US government’s initiative to provide greater protection to US copyrighted works overseas where pirating is rampant. However, does the fact that these zombie copyrights roam worldwide, somehow make them less threatening for parties who had relied upon their prior apparent dead status?

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