University of New Hampshire

School of Law

Franklin Pierce Center for IP Files First Brief To US Supreme Court

Franklin Pierce Center for IP Files First Brief To US Supreme Court

The Franklin Pierce Center for Intellectual Property at the University of New Hampshire School of Law has filed an amicus brief to the United States Supreme Court, in a case billed as “a major test of copyright power.”

The case, Lawrence Golan v. Erich H. Holder, Jr., poses important questions regarding the scope of Congress’ authority under the US Constitution to grant exclusive intellectual property rights without abridging free speech. It also raises issues relating to the extent to which Congress can amend domestic copyright law to fulfill the United States’ international treaty obligations. Specifically, the case concerns Congress’ amendment of the US Copyright Act in 1994, to restore copyright protection for certain foreign copyrights that had expired in the United States because of lack of compliance with domestic US requirements. This was done after the establishment of the World Trade Organization, which swept international intellectual property treaty standards into the international trade framework, such that lack of compliance by WTO member states with their treaty obligations could trigger the filing of a dispute with the WTO by another member state.

The center filed in support of the US government, the respondent in this case. It was the only amicus brief authored by an academic or filed by an academic institution to do so, said Professor Mary Wong, the IP center’s director. Five other amicus briefs were filed in support of the respondent, while 16 were filed in support of the petitioners – of these, several were authored by other academics. 

“This case raises important issues concerning the extent to which the broad authority afforded to Congress under the US Constitution also permits it to remove previously copyrighted works from the public domain,” said Professor Wong. “Our filing in support of the government’s position does not mean that we do not believe in the importance of a robust public domain and strong free speech rights. Intellectual property policy has to balance many conflicting public interests. In this case, consideration also has to be given to the international context, the United States’ foreign trade policy, and its desire to remain a respected leader in international intellectual property policy making. We therefore believe that a limited diminution of the public domain, strictly contained and with certain protections for parties who had relied on the prior public domain status of the restored works, was the appropriate and legitimate policy choice made by Congress.”

Three UNH Law students assisted with the brief: rising 3Ls Mia Motiee, Heath Misley and Richard Peterson. “They were tireless in searching out the most obscure sources, coped cheerfully with numerous conference calls in wildly different time zones, and took on much of the responsibility of coordinating with the court and the parties to the case,” said Wong.

The Franklin Pierce Center for IP is UNH Law’s new global hub for IP education, applied research and global partnerships. It will open in September. This is the first US Supreme Court amicus brief it has filed.

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