ABSTRACT
At present, there is a broad movement conducted on the part of the cultural content industries to enforce on a global scale a greatly strengthened system of intellectual property (Hamelink 2004, Tyfield 2010). Laws, such as the Copyright Term Extension Act and the Uruguay Round Agreements Act (URAA) and the resulting litigation, threaten the balance between private property interests and public interests in cultural production. The recent case of Golan v. Holder (2012) (from here, Golan) exemplifies this unbalancing. At stake was the status of the public domain, the place where works go when their copyright protection runs out. The key ruling in Golan was the US Supreme
Court’s outright rejection of society’s interests in the public domain. Its rejection is due, at least in part, to the opaque status of the public domain in American law. While American jurisprudence has traditionally held that the public domain is an important part of our copyright system (Ochoa and Rose 2002, Ochoa 2003), neither the courts nor Congress has ever defined the public domain in affirmative terms. In this article, we aim to explore the ramifications of Golan’s assault on the public domain and make the case that the public domain is so important to our copyright system that an affirmative definition is essential to maintaining the balance copyright was meant to secure.
