The Supreme Court heard oral argument this morning in Golan v. Holder, which considers the constitutionality of Section 104A of the Copyright Act, added in 1994 by the obfuscatorily named Uruguay Round Agreements Act. The constitutional issue is whether Congress can, consistent with the Copyright Clause and the First Amendment, remove works from the public domain by “restoring” copyrights to works that had either expired or failed to vest due to a failure to comply with technical requirements.

If that sounds a bit abstruse, here’s the issue put more concretely: can Congress restore the United States copyright to J.R.R. Tolkien’s Lord of the Rings trilogy? Or once a work is in the public domain, for whatever reason, is it there irretrievably? The first volume of The Lord of the Rings was published in the United States in 1954 with a paltry 1,500 copies; even though the Hobbit had done well, Tolkien’s publishers did not anticipate what a blockbuster success The Lord of the Rings would be. As a result, the copies soon sold out, and instead of running another U.S. printing, Houghton Mifflin, Tolkien’s U.S. publisher, imported more copies from the UK to fill demand. But apparently Houghton Mifflin screwed up, because they accidentally imported too many: U.S. copyright law at the time contained a protectionist “manufacturing requirement” for books, requiring books sold in the United States to be printed in the United States, with only limited exceptions. A paperback publisher discovered the error in 1965 and printed 150,000 copies of the trilogy without paying any royalties to Tolkien or his publishers.

The Lord of the Rings is just one example of foreign copyright owners getting tripped up by U.S. copyright formalities. U.S. copyright law used to require that a copyright notice in a particular form accompany the published version of any work. Copyright owners were required to register their copyrights to receive protection, and to have the authors renew those copyrights in their 28th year to extend that protection. Foreign copyright laws generally lack any of these sorts of formal requirements for receiving copyright protection, and at least some foreign authors and publishers may have been unfamiliar with them. Others may have simply made a calculated decision to, e.g., not pay for renewal of copyright in a work that had not sold well in the United States. Still others may have failed to comply with U.S. formalities, but due to mistakes that American copyright owners were equally capable of making at the time as well, such as an unintentional omission of the copyright notice on published copies.

As part of world trade negotiations in 1994, an effort was made to harmonize international copyright laws, to accord equivalent protections to copyrighted works in all countries signing on to the General Agreement on Tariffs and Trade (GATT). The United States wants other countries to beef up their protections for U.S. copyrighted works, given the number of global copyright industries centered in the United States: television and film production, record labels, the software industry, book publishing. But in return, copyright owners in other countries have demanded that the United States eliminate some of the idiosyncratic features of U.S. copyright law: formalities, our nebulous definition of fair use, the lack of protection for creators’ “moral rights.” The URAA was passed in 1994 to at least address the first issue, and, it was hoped, give the U.S. better leverage in negotiation increased protection of U.S. works abroad.

The URAA added Section 104A to the Copyright Act. Section 104A provides that “[c]opyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration”–the “date of restoration” for most countries being January 1, 1996. A “restored work” is defined under Section 104A as a foreign work of authorship that is still within the maximum term of protection in the United States, is currently protected by copyright law in its home country, and:

(C) is in the public domain in the United States due to— (i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; (ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or (iii) lack of national eligibility.

In other words, The Lord of the Rings, authored by a UK author, first published in the UK in May 1954, published in the US five months later, still under copyright in the UK, and in the public domain in the US due to failure to comply with the manufacturing requirements, was restored to copyright in the United States on January 1, 1996 — just in time for the movies. What about people, such as Ace Books, who had relied on the Lord of the Rings’ public domain status in the interim, before it was restored? Congress provided that the restored copyright could be enforced against so-called “reliance parties” after a notice period. Reliance parties that had created derivative works based on a restored public domain work — e.g., a film adaptation — can continue to exploit the derivative work, but only on payment of “reasonable compensation” to the copyright owner.

Even if you think all this is an acceptable policy choice, that doesn’t resolve the constitutional issue. Does Congress have the power to remove items from the public domain? I don’t have a strong view. But one reason the question is difficult is that that way of phrasing it is itself somewhat novel. Our current view of the public domain as a repository of information and ideas, crucial to innovation and creativity, has only taken hold with force in the last few decades. Only twenty years ago, when Jessica Litman published her pathbreaking article on the public domain in the Emory Law Journal, it drew a critical response from copyright scholar Ed Samuels challenging the coherence of the very notion of a public domain. The public domain, Samuels argued, is just the leftover bits after the copyrighted and patented stuff has been removed. It’s like the set of all prime numbers, which is the set of numbers after those with non-trivial divisors have been removed — there’s no internal formula that defines it. That view has been largely supplanted in IP scholarship and in legal culture generally in recent years, as seen in the last big public domain case that came before the Court, Eldred v. Ashcroft.

The novelty of concerns about the public domain can also be seen in how it was treated earlier in the nation’s history. There is evidence that Congresses in the nineteenth century did not view according intellectual property protection to items in the public domain as particularly egregious. The First Congress adopted the Copyright Act of 1790, which extended federal copyright protection to “any map, chart, book or books already printed within these United States,” although copyright scholars Tyler Ochoa and Tomas Gomez-Arostegui have noted that that precedent is murky, given that Congress was simultaneously extinguishing possible common law or state statutory copyright protection for those same works. More troubling is the behavior of later congresses in according copyright and patent protection to works and inventions that, for one reason or another, had fallen into the public domain. Patents are thought to be an even greater incursion than copyrights into the public domain — patents reserve the ability to make, use, or sell the patented invention exclusively to the patentee, even if another person should independently come up with the same idea — which is the standard explanation for why patents are so much harder to get. Nevertheless, throughout the nineteenth century, Congress by special legislation “restored” patent rights and copryights to patentees and authors whose protection had lapsed or failed for some technical reason.

It’s difficult to imagine that happening now, but that is a measure of how important intellectual property policy has become — and how politicized. That changed circumstance, as well as the overall change in thinking about private and public rights wrought by the media and information revolutions of the twentieth century — is something the Court is currently ill-disposed to consider. Most members of the current Supreme Court adhere to a more or less originalist theory of constitutional interpretation, one that makes it difficult to admit that constitutional concepts change over time. (Those theories that do admit for the possibility of dynamic interpretation, such as Jack Balkin’s, also tend to be criticized as “not really originalist.”) Most members of the Court will therefore be constrained from concluding, as a basis for a constitutional restriction on Congress’s copyright power, that the public domain simply is more important now, constitutionally, than it was in 1790. But there is no doubt that that is true — along with the fact that both copyrights and the First Amendment itself are also more significant in our current legal culture.