High Court's Copyright Ruling Gives Congress Wide Leeway

January 18, 2012Article

Law360, New York (January 18, 2012, 11:31 PM ET) -- By upholding a law that restored copyright protection to foreign works that were once in the public domain, the U.S. Supreme Court signalled Wednesday that Congress has very broad discretion to alter copyright protection, even in the face of free speech challenges, attorneys say. In both this week's ruling, and its 2003 decision in Eldred v. Ashcroft, which affirmed the authority of Congress to extend the term of copyright, the high court has rejected challenges to the constitutionality of laws that broaden copyright protections.

"The big takeaway is that the Constitution gives Congress very significant power to adjust intellectual property protection," said Donald Falk of Mayer Brown LLP. "First Amendment challenges to intellectual property protection are not being viewed with much favor by this court."