MEMORANDUM OPINION
Granting the Defendants’ Motion to Dismiss
I. INTRODUCTION
This case comes before the court on the defendants’ motion to dismiss. The plain *109 tiffs Luck’s Music Library, Inc. (“Luck’s Music”) and Moviecraft, Inc. (“Movie-craft”) (collectively, “the plaintiffs”) bring suit alleging that Section 514 (“Section 514”) of the Uruguay Round Agreements Act (“the URAA”), Pub.L. No. 103-465, amending 17 U.S.C. § 104A, is unconstitutional. Defendants John Ashcroft, Attorney General of the United States, and Marybeth Peters, Register of Copyrights (collectively, “the defendants”) move to dismiss the instant case on the ground that the plaintiffs failed to state a claim on which relief can be granted. Because Section 514 does not overstep Congress’ power under the Intellectual Property clause of the Constitution (“IP Clause”) and does not violate the First Amendment, the court grants the defendants’ motion to dismiss.
II. BACKGROUND
A. The Uruguay Round Agreements Act
Section 514 implements Article 18 of the Berne Convention for the 'Protection of Literary and Artistic Works (“the Convention”). 1 S.Rep. No. 103-412, at 225 (Nov. 22, 1994). The Convention governs the international enforcement of copyright law. S.Rep. No. 100-352, at 2, (May 19, 1988). Since its entry into force in 1886, the Convention requires member countries to afford the same copyright protections to foreign copyright holders that they provide to their own citizens. Convention, Art. 5. The United States ratified the Convention in 1988. 134 Cong. Reo. 32018 (Oct. 20, 1988).
Article 18 of the Convention provides that a member country must apply the protections in the Convention to all works that have not yet fallen into the public domain through the expiration of the copyright’s term in its origin country. 2 Section 514 restores copyright to foreign copyright holders whose works remain protected in their origin country, but entered the public domain in the United States due to the (a) failure of the foreign copyright holder to comply with the United States’ copyright formalities, (b) absence of prior subject-matter protection such as sound recordings fixed before 1972, or (c) failure of the United States to recognize copyrights from that country. 3 17 U.S.C. § 104A(h)(6). .
*110 Section 514, however, allows some latitude for parties who relied on the fact that the foreign works were in the public domain prior to the date of restoration. Id. § 104A(d)(l). Specifically, Section 514 prevents restored copyright holders from enforcing their copyright against another party without providing the party with a notice of intent to enforce the restored copyright. Id. § 104A(d)(2). After receiving a notice of intent to enforce a restored copyright, a party has one year to stop the infringing behavior. Id. Finally, if the party created a derivative work from the restored copyrighted work, that party may continue to exploit the work if it reasonably compensates thе restored copyright holder. Id. § 104A(d)(3)(A).
B. Luck’s Music
Luck’s Music is a family-owned corporation that repackages and sells works already in the public domain. Compl. ¶¶ 28-29. In particular, it sells and rents classical orchestral sheet music to more than 7,000 orchestras ranging from elementary to operatic and to 12,000 individuals worldwide. Id. ¶ 28. Much of Luck’s Music’s catalog of music consists of music composed and published in countries ineligible for copyright in the United States due to their refusal to provide reciprocal protection. Id. ¶ 30. For example, Russian works published in the former Soviet Union such as Peter and the Wolf and Love and Three Oranges by Prokofiev; Symphony No. 5 and Festive Overture by Shostakovich; Masquerade Suite and Sparticus Ballet by Khatchaturian; Russian Sailor’s Dance and Red Poppy Ballet Suite by Glier; The Comedians, Piano Concerto, and Cello Concerto by Kabalevsky; and Soldier’s Tales and Symphony of the Winds by Stravinsky remained in the public domain in the United States. Id. ¶¶ 30-31. Works ineligible for copyright composed ten percent of Luck’s Music’s total inventory and netted average annual sales of $150,000. Id. ¶ 30.
Congress’ passage of Section 514 restored copyright to these works. Id. ¶ 31. After the passage of Section 514, Luck’s Music received several notices of intent to enforce copyright, demanding-that Luck’s Music cease and desist from selling 200-300 different works from Russian composers, including Prokofiev, Shostakovich, Khatchaturian, Giler, Kabalevsky, and Stravinsky. Id. During the one-year grace period provided for under section 104A, Luck’s Music was unable to sell its entire inventory of Russian works. Id.
C. Moviecraft
Moviecraft is a family-owned business that preserves films dating back to the early 1900s. Id. ¶ 35. It archives various films and works ranging from World’s-Fair footage, industrial films, short films, films with historical subjects, newsreels and cartoons to old television features and shows such as Sheena, Queen of the Jungle (1955) and Dupont Cavalcade of America (1956). Id. ¶ 36. Its film archive consists of 40,000 titles and 200,000 film elements such as negatives and reels. Id. To pay for archiving and preserving these works, Moviecraft makes and sells copies of these works for home use as well as derivative *111 works such as documentaries, commercials, and compilations. Id. ¶¶ 37-38.
Moviecraft’s current library includes thousands of foreign films in the public domain due to lack of copyright notices. Id. ¶ 39. It obtained and preserved many of these films, expecting to defray its purchase and preservation costs through their sales for derivаtive works. Id. It also planned to release The Sicilian, a 1963 foreign movie in the public domain, for sale on home video. Id. ¶ 41.
Section 514, however, restored copyrights to many of the foreign works that Moviecraft obtained and restored. Id. ¶ 40. As a result of this copyright restoration, Moviecraft cannot duplicate these films for use in derivative works with assurance^ that the restored copyright will not be enforced. Id. Accordingly, many of Moviecraft’s customers refuse to purchase and use the foreign works. Id. In addition, Moviecraft gave up plans for releasing The Sicilian after receiving a notice of intent to enforce the restored copyright. Id. ¶ 41.
D. Procedural History
The plaintiffs filed their complaint on October 29, 2001, asking for declaratory and injunctive relief.
See generally id
On Februаry 15, 2002, the defendants moved to dismiss the instant case for failure to state a claim on which relief can be granted. After filing briefs, the court granted the parties’ joint request to stay the case pending the the Supreme Court’s ruling in
Eldred v. Ashcroft,
a copyright case. After the Supreme Court decided
Eldred,
III. ANALYSIS '
A. Legal Standard for Rule 12(b)(6)
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint.
Browning v. Clinton,
Accordingly, “the accepted rule in every type of case” is that a court should not dismiss a complaint for failure to state a claim unless the defendant can show beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.
Warren v. District of Columbia,
;B. Legal Standard for Interpretation of the Intellectual Property ‘!' Clause
The Constitution’s IP clause grants Congress'the power “[t]o promotе the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. Art. I, § 8, cl.; 8. Accordingly, the IP clause provides Congress with the power to grant a limited monopoly through copyrights or patents to ^ufhors or inventors for, their particular writings and inventions. Ma
zer v. Stein,
-The Constitution grants Congress the power to select, in its judgmеnt, the best policy by which to effectuate the stated purpose of the IP clause.
Graham v. John Deere Co.,
C. The Court Concludes That Section 514 Does Not Exceed Congress’ Power Under the IP Clause
The plaintiffs claim that Section 514 oversteps the powers granted ^to Congress in Article I and violates the First Amendment. Compl. ¶ 46. Specifically, the plaintiffs assert that the IP clause requires the public to have free access to copy and use works once they have fallen into the public domain.
Id.
By enacting Section 514 and granting retroactive copyrights to various works, the plaintiffs argue, Congress violated the IP clause
Id.
The plaintiffs also assert that Congress’ enactment of Section 514 rests outside the powers the IP clause grants because Section 514 grants retroactive copyrights to works that are nоt original and does not promote the progress of science and the useful arts. Pis.’ Opp’n to Defs.’ Mot. to Dismiss (“Pis.’ Opp’n”) at 24-27. In turn, the defendants argue that the enactment of Section 514 falls within the authority of the IP clause, or, alternatively, that other powers in Article I grant Congress the power to enact Section 514.
See generally
Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) The court concludes that Section 514 does not violate the IP clause and, therefore does not address whether there are other con
*113
stitutional powers through which Congress might pass Section 514. Because Section 514 is Constitutional, the plaintiff cannot prove any set of facts upon which reliеf can be granted.
Warren,
1. Congress Has Traditionally Exercised Restorative Copyright Powers
The defendants seek to establish that Section 514 is constitutional by demonstrating a history of retroactive copyrighting based on previous acts and proclamations tracing back to the founding of the United States. Defs.’ Mot. at 12. The defendants assert that the Copyright Act of 1790 (“1790 Act”), 1 Stat. 124, established retroactive copyright, and several presidential declarations continued the tradition of restoring copyrights retroactively without constitutional challenge. Id. at 12-14. In response, the plaintiffs argue that the 1790 Act simply codified a state-based statutory copyright, or, to the extent states did not have a copyright statute, common law copyright. Pis.’ Opp’n at 21-23. The plaintiffs also contend that the presidential proclamations only applied to copyright holders who could not meet statutory formality requirements during times of war. Id. The plaintiffs’ arguments, however, are unpersuasive.
“To comprehend the scope of Congress’ power under the [IP clause], ‘a page of history is worth a volume of logic.’ ”
Eldred,
a. Congress Created Copyrights by Enacting the 1790 Act
The 1790 Act granted copyright protection to all books, maps and charts “already printed within these United States” at the time of enactment. 1 Stat. 124. The plaintiffs’ interpretation that the 1790 Act merely codified existing copyright law requires the assumption that either all states had copyright statutes enacted or that a common-law of copyright existed in the United States. Pis.’ Opp’n at 22; Pis.’ Supplemеntal Mem. at 4. If neither of these bodies of law existed, then Congress’ implementation of the 1790 Act would have created copyright law and granted retroactive copyrights to works already in the public domain. A review of state statutes before the ratification of the Constitution and the enactment of the 1790 Act reveals that the plaintiffs’ argument is flawed.
Before the ratification of the Constitution, the Articles of Confederation granted any powers not expressly delegated to Congress to the States. Articles of Confederation, Art. II. Because the Articles of Confederation did not vest Congress with the power to protect intellectual properties, it fell to each state to pass its own copyright statute. Edward C. Walter-scheid, The Nature of the Intellectual Property Clause: A Study in Historioal Perspeotive, 31 (2002); see also 8 M. Nim-MER AND D. NlMMER, NlMMER On COPYRIGHT, App. 7[B][1] (2003) (hereinafter Nimmer’s Copyright) (reprinting the Continental Congress’ recommendation that states *114 pass intellectual property protection laws). Not all of the states, however, enacted statutory copyright laws. Lyman Ray Patterson, COPYRIGHT IN HISTORICAL PERSPECTIVE 188-184 (1968); 8 Nimmer’s Copyright, App. 7[C] (reprinting the states’ copyright statutes in Appendix 7). Delaware, Maryland and Pennsylvania never enacted copyright statutes. Bruce W. Bugbee, Genesis op AMERICAN Patent and Copyright Law, (1967) at 123, 124. Accordingly, three of the original 13 states did not have any kind of copyright protection. Id. Thus, Congress’ actions with the enactment of the 1790 Act created retroactive copyrights for works published by the citizens of these three states.
As noted, the plaintiffs argue that in cases where states did not have a copyright statute in effect, a common-law of copyright existed. Pis.’ Opp’n at 22. By enabling the 1790 Act, the plaintiffs claim, Congress simply converted these common law rights into statutory law. Id. The plaintiffs point out that British precedent, the foundation of American common law, supports their position. Pls.’ Supplemental Mem. at 4 (citing Donaldson v. Beckett, 98 Eng. Rep. 257 (H.L.1774) and Millar v. Taylor, 98 Eng. Rep. 201 (K.B.1769)).
Nearly two centuriеs ago, however, the Supreme Court ruled that a common law copyright did not exist in the United States.
Wheaton v. Peters,
b. The 1919 Amendments and the Emergency Act of 1941 Authorizing Restoration of Copyrights Demonstrates A Consistent Congressional Practice
The plaintiffs also argue that several presidential proclamations cited by the defendants as examples of continued tradition of Congress’ restoration of copyrights are inadequate because the proclamations merely granted administrative extensions оf time rather than restoring copyright to works already in the public domain as Section 514 does. Pis.’ Opp’n at 23-34. The defendants, however, assert that the plaintiffs’ arguments are “mere wordplay” because presidential proclamations did not simply extend time for complying with U.S. formalities regarding copyrights. Defs.’ Reply at 12-13. Rather, the plaintiffs’ claim, the Congressionally authorized presidential proclamations “gave authors the opportunity to gain copyright protection for works that had fallen into and would otherwise have remained in the public domain[.]” Id. at 13.
Congress has enacted two statutes allowing the president to exercise рowers of copyright restoration through proclamations.
See
An Act to Amend Sections 8 and 21 of the Copyright Act, 41 Stat. 368 (1919) (“1919 Amendment”); Emergency Copyright Act of 1941, 55 Stat. 732 (1941)
*115
(“Emergency Act”).
4
Both acts gave the president the power to restore copyrights to foreign authors for works published within a specific time period as long as the. copyright holder complied with U.S. copyright formalities and reveal a Congressional practice of restoring copyrights.
Id.
For instance, Presidents Wilson and Harding issued proclamations in 1920 and 1922 respectively that effectively restored copyright to British and German works published during World War I. Proclamations of Woodrow Wilson, 41 Stat. 1790 (1920); Proclаmations of Warren Harding, 42 Stat. 2271-2278 (1922). Later proclamations restored copyrights to foreign works published on or after September 8, 1939 whose authors complied with U.S. copyright formalities.
E.g.,
Proclamation No. 2608, 3 C.F.R. § 2608 (1944) (restoring copyright to authors from the United Kingdom); Proclamation No. 2722, 3 C.F.R. § 2722 (1947) (France); Proclamation No. 2729, 2 C.F.R. § 2729 (1947) (New Zealand); Proclamation No. 2863, 3 C.F.R. § 2683 (1949) (Australia); Proclamation No. 2953, 3 C.F.R. § 2953 (1951) (Finland); Proclamation No. 3353, 3 C.F.R. § 3353 (Austria); Proclamation No. 3792, 3 C.F.R. § 3792 (1967) (Germany). In each case, before the president issued the proclamations, published works from those countries were automatically part of the public domain.
Nat’l Comics Pubs., Inc. v. Fawcett Pubs.,
The plaintiffs’ argument that power vested by these statutes did not restore copyright but simply created an administrative extension of time does not account for the provisions within the 1919 Amendment and the Emergency Act that protected individuals who relied
on
the fact that these works were in the public domain before the proclamations restored their copyrights.
2. The Plaintiffs’ Misplace Their Reliance on Caselaw Interpreting Patent Law
The plaintiffs next argue that the Constitution’s IP clause has an implicit public domain limitation. Pis.’ Opp’n at 10-11. Citing the patent case
Graham v. John Deere Co.,
In
Graham,
the Supreme Court held that Congress could not grant a patent to an invention that entered the public domain before the inventor filed a patent application.
Graham,
While the plaintiffs are correct that “[bjecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents inform [the Court’s] inquiry [into copyright],”
Eldred,
The
Graham
holding is inapplicable to the instant case because
Graham
concerns specific requirements unique to patent law. In
Graham,
the Court based its holding on the rigors of the patent statute’s novelty requirement, which differs fundamentally from the copyright statute’s requirements.
Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,
In contrast, the copyright statute has no such novelty requirement.
Sheldon v. Metro-Goldwyn Pictures Corp.,
3. Section 514 Does Not Hinder the Promotion of Science
The plaintiffs also claim that Section 514 violates the preamble of the IP clause because it does not “promote the Progress of Science.” Pis.’ Opp’n at 25 (citing U.S. Const. Art. I, § 8, cl. 8). They assert that a quid pro quo exists between the government’s grants of exclusive rights to a work and the guarantee of public access after the copyright expires. Id. Section 514, the plaintiffs contend, prevents this quid pro quo from occurring. Id. at 26. The defendants argue, however, that the Constitution gives Congress the ultimate authority on the progression of science. Defs.’ Supplemental Mem. at 6. Thus, the defendants assert that for Section 514 to pass constitutional muster, the court need only conclude that Congress acted rationally to promote science in enacting the statute. Id.
Courts have not interpreted the phrase “To promote the Progress of Science and useful Arts,” in the IP clause as constituting a limitation on the power of Congress.
Schnapper v. Foley,
Following this precedent, the court here determines that Section 514 bears a rational relation to the progression of science. Congress’ rationale in enacting Section 514 was to secure the protection of copyrights in foreign countries for U.S. citizens. Defs.’ Supplemental Mem. at 2. Given industry losses of $43 to $61 billion through piracy because of “inadequate [foreign] legal protection for United States intellectual property,” the Senate noted that implementing Section 514 “is a significant opportunity to reduce the impact of copyright piracy on our world trade position.” S.Rep. No. '100-352, at 2, (May 19, 1988). Accordingly, the court concludes that Congress’ conception of Section 514 has a rational relationship to the promotion of science.
Schnapper,
4. Section 514 Does Not Violate the Originality Requirement
As noted earlier, the IP clause provides Congress the power “[t]o promote
*118
the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. Art. I, § 8, cl. 8. In order for copyright protection to apply to a work, the work must be original.
Feist Publ’ns, Inc. v. Rural Tele. Service Co.,
“The
sina qua non
of copyright is originality.”
Feist,
In
Eldred,
the Supreme Court held that the originality requirement means only that a modicum of creativity exists, and did not depend on the timing of the grant of copyright protection.
D. The Court Concludes That Section 514 Does Not Violate the First Amendment
Finally, the plaintiffs claim that Section 514 violates the First Amendment because it restricts the freedom оf expression of works already in the public domain. Compl. ¶ 48-51. The defendants argue— and the court agrees — that Eldred bars this argument.
The
Eldred
Court held that “[t]he First Amendment securely protects the freedom to make ... one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.”
Eldred,
In the instant case, Congress has not altered the traditional contours of copyright protection by enacting Section 514.
See generally
17 U.S.C. § 104A. Section 514 does not alter First Amendment accommodations such as the idea/expression dichotomy or the fair-use doctrine.
Id.
In fact, Section 514 supplements First Amendment protections by protecting parties who already have exploited the restored copyrighted work while in the public domain.
Id.
§ 104A(d)(2). It allows parties to exploit a restored wоrk indefinitely if no notice is provided, immunizes parties for acts prior to notification and allows a party to continue exploiting the copyrighted works for a year after notice.
Id.
In addition, Section 514 allows the continued exploitation of derivative works based on a restored copyright as long as the restored copyright holder receives reasonable compensation.
Id.
§ 104A(d)(3). Given that Section 514 does not encroach on the traditional copyright protections and includes additional protections, further scrutiny under the First Amendment is unnecessary.
Eldred,
IV. CONCLUSION
For all these reasons, the court grants the defendants’ motion to dismiss. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this 10th day of June, 2004.
Notes
. The URAA implemented the General Agreement on Tariffs and Trade 1994 (“GATT”). S. Rep. No. 103-412, at 3, (Nov. 22, 1994). Title V of the URAA implements the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPs”), which requires compliance with the Articles 1-21 of the I?erne Convention. Id.
. Article 18 of the Berne Convention provides, in relevant part, that: .
(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.
(2) If, however, through the expiry of the term of protection which Was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew[J
.Section 104A provides, in relevant part,
§ 104A. Copyright in restored works
(а) Automatic protection and term.
(1) Term.
(A)Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration.
(h) Definitions. For purposes of this section and section 109(a):
(б) The term "restored work” means an original work of authorship that—
(A) is protected under subsection (a);
(B) is not in the public domain in its source country through expiration of term of protection;
(C) is in the public domain in the United States due to—
(i) noncompliance with formalities imposed at any time by United States copy-
*110 right 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;
(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country.
. The 1919 Amendment provides that:
all works made the subject of copyright by the laws of the United States first ... published abroad after August 1, 1914, and before the date of the President’s proclamation of peace, of which the author or proprietors are citizens or subjects of any foreign State or nation granting similar protection for works by citizens of the United States, the existence of which shall be determined by a copyright proclamation issued by the President of the United States, shall be entitled to the protection conferred by the copyright laws of the United States from and after the accomplishment, ... of the conditions and formalities prescribed with respect to such works by the copyright laws of the Untied States:
Provided further, That nothing herein contained shall be construed to deprive any person of any right which he may hаve acquired by the republication of such foreign work in the United States prior to the approval of this Act.
41 Stat. at 369 . The Emergency Act provides that:
That whenever the President shall find that the [copyright owners] of works first produced or published abroad and subject to copyright ... are or may have been temporarily unable to comply with the conditions or formalities prescribed with respect to such works by the copyright laws of the United States, because of the disruptions or suspensions of facilities essential for such compliance, he may by proclamation grant such extension of time as he deems appropriate for the fulfillment of such conditions or formalities by [copyright owners].
Provided further, That no liability shall attach ... for lawful uses made or acts done prior to the effective date of such proclamation in connection with such works, or in respect to the continuance for one year subsequent to such date of any business undertaking or enterprise lawfully undertaken prior to such date[.]
55 Stat. at 732 .
. The fair-use doctrine, codified at 17 U.S.C. § 107 provides that "the fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright.”