In 1989, the United States joined a copyright treaty called the Berne Convention for the Protection of Literary and Artistic Works. The member nations of Berne are required to provide the same copyright protections to foreign authors that they provide to domestic authors. Article 18 of Berne requires a joining country to provide copyright protection to preexisting foreign works even when those works were in the public domain in that country before the date of its joining. When the United States joined Berne, however, Congress postponed the enactment of legislation to implement compliance with Article 18, so it did not extend copyrights to any foreign works that were already in the public domain in the United States. Five years later, in 1994, the United States signed several trade agreements in the Uruguay Round General Agreement on Tariffs and Trade, including the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs). The TRIPs agreement required its signatories to comply with Article 18 of the Berne Convention, so to comply with TRIPs, Congress enacted the Uruguay Round Agreements Act (URAA), Section 514 of which restores copyrights in foreign works that had formerly lain in the public domain in the United States.

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On December 13, 2010, the United States Supreme Court issued a split decision in the Costco v. Omega copyright case. Justice Kagan filed an amicus brief in the case while she was the U.S. Solicitor General, so she recused herself from the proceeding, and the decision issued as a 4-4 tie, with no opinion and none of the justices identified as having voted one way or the other. Decisions without explanations are handed down relatively rarely from our highest court, so this split decision naturally raises questions.

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One of the cases currently pending at the U.S. Supreme Court, Costco v. Omega, concerns competing interpretations of the Copyright Act, and the case has implications that could affect not only media industries but many retail goods industries as well. At its broadest, the case could affect the U.S. job market because manufacturers of copyrighted goods may decide to manufacture abroad rather than in the U.S. if the Court’s interpretation of the Copyright Act in this case gives them an incentive to do so.

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Today, February 18, 2010, the Fairness Hearing for the Google Books Settlement, postponed since October of last year, is scheduled to take place before U.S. District Court Judge Denny Chin in New York City. The judge and the principal parties -- Google, the Authors Guild, and the Association of American Publishers -- will certainly discuss the strong voices that have recently expressed sharp disapproval for the revised Settlement.

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