Golan v. Holder

Justice Ginsburg

delivered the opinion of the Court.

The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention, Convention, or Berne), which took effect in 1886, is the principal accord governing *307international copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implementation of Berne, and as part of our response to the Uruguay round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in § 514 of the Uruguay Round Agreements Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound recordings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection).

The URAA accords no protection to a foreign work after its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by §514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to §514’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barriers to U. S. copyright protection prior to the enactment of § 514, foreign works “restored” to protection by the measure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in § 514 ameliorating accommodations for parties who had exploited affected works before the URAA was enacted.

Petitioners include orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to *308works § 514 removed from the public domain. They maintain that the Constitution’s Copyright and Patent Clause, Art. I, § 8, cl. 8, and First Amendment both decree the invalidity of § 514. Under those prescriptions of our highest law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there.

In accord with the judgment of the Tenth Circuit, we conclude that § 514 does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.

I

A

Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Berne Convention, Sept. 9, 1886, as revised at Stockholm on July 14, 1967, Arts. 1, 5(1), 828 U. N. T. S. 221, 225, 231-233. Nationals of a member country, as well as any author who publishes in one of Berne’s 164 member states, thus enjoy copyright protection in nations across the globe. Arts. 2(6), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Arts. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(l)-(2).1

*309A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the ,20th century, the only eligible foreign authors were those whose countries granted reciprocal rights to U. S. authors and whose works were printed in the United States. See Act of Mar. 3, 1891, §§ 3, 13, 26 Stat. 1107,1110; Patry, The United States and International Copyright Law, 40 Houston L. Rev. 749, 750 (2003).2 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and renewal formalities.

The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Congress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100-609, p. 7 (1988) (hereinafter BCIA House Report). The Berne Convention Implementation Act of 1988 (BCIA), 102 Stat. 2853, made “only those changes to American copyright law that [were] clearly re*310quired under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries— including “new accessions to the Union” — protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” § 12, 102 Stat. 2860. Protection of future foreign works, the BCIA indicated, satisfied Article 18. See § 2(3), 102 Stat. 2853 (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention . . . .”). Congress indicated, however, that it had not definitively rejected “retroactive” protection for pre-existing foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52.3

*311The minimalist approach essayed by the United States did not sit well with other Berne members.4 While negotiations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommittee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 168 (1991) (statement of Ralph Oman, U. S. Register of Copyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Ibid. Thailand and Russia balked at proteet-*312ing U. S. works, copyrighted here but in those countries’ public domains, until the United States reciprocated with respect to their authors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, Office of the U. S. Trade Representative (USTR)); id., at 208 (statement of Professor Shira Perlmutter); id., at 291 (statement of Jason S. Berman, Recording Industry Association of America (RIAA)).6

Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolution before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not . . . bound” by the Convention’s dispute resolution provision. Art. 33(2)-(3), 828 U. N. T. S., at 277. Unsurprisingly, no enforcement actions were launched before 1994. D. Gervais, The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Congress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Pinal Report, Berne Article 18 Study on Retroactive United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 157, 172 (1996).

The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related *313Aspects of Intellectual Property Rights (TRIPS).7 The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Article 6bis). The WTO gave teeth to the Convention’s requirements: Noncompliance with a WTO ruling could subject member countries to tariffs or cross-sector retaliation. See Gervais, supra, at 213; 7 W. Patry, Copyright §24:1, pp. 24-8 to 24-9 (2011). The specter of WTO enforcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”).8

Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Article 18. Section 514 of the URAA, 108 Stat. 4976 (codified at 17 U. S. C. § 104A, 109(a)),9 extended copyright to works that *314garnered protection in their countries of origin,10 but had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See § 104A(h)(6)(B)-(C).11

*315Works that have fallen into the public domain after the expiration of a full copyright term — either in the United States or the country of origin — receive no further protection under §514. Ibid,12 Copyrights “restored”13 under URAA § 514 “subsist for the remainder of the term of copyright that the work would have otherwise been granted ... if the work never entered the public domain.” § 104A(a)(l)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultaneously. See § 302(a) (copyrights generally expire 70 years after the author’s death). Restored works, however, receive no compensatory time for the period of exclusivity they would have enjoyed before §514’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works.

The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored *316works for one year following §514⅛ enactment. See 17 U. S. C. § 104A(h)(2)(A). Concerns about § 514⅛ compatibility with the Fifth Amendment’s Takings Clause led Congress to include additional protections for “reliance parties”— those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See § 104A(h)(3)-(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce — either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. § 104A(c), (d)(2)(A)(i), and (B)(i). After that, reliance parties may continue to exploit existing copies for a grace period of one year. § 104A(d)(2)(A)(ii) and (B)(ii). Finally, anyone who, before the URAA’s enactment, created a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. § 104A(d)(3).

B

In 2001, petitioners filed this lawsuit challenging §514. They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District *317Court granted the Attorney General’s motion for summary judgment. Golan v. Gonzales, No. Civ. Ol-B-1854, 2005 WL 914754 (D Colo., Apr. 20, 2005). In rejecting petitioners’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunction about removing copyrightable materials from the public domain.” Id., at *14. The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns.” Id., at *17.

The Court of Appeals for the Tenth Circuit affirmed in part. Golan v. Gonzales, 501 F. 3d 1179 (2007). The public domain, it agreed, was not a “threshold that Congress” was powerless to “traverse in both directions.” Id., at 1187 (internal quotations marks omitted). But §514, as the Court of Appeals read our decision in Eldred v. Ashcroft, 537 U. S. 186 (2003), required further First Amendment inspection, 501 F. 3d, at 1187. The measure “‘altered the traditional contours of copyright protection,’ ” the court said— specifically, the “bedrock principle” that once works enter the public domain, they do not leave. Ibid, (quoting Eldred, 537 U. S., at 221). The case was remanded with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion.

On remand, the District Court’s starting premise was un-eontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government interest.” 611 F. Supp. 2d 1165, 1170-1171 (Colo. 2009) (quoting Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989)). Summary judgment was due petitioners, the court concluded, because § 514’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, *318securing greater protection for U. S. authors abroad, or remediation of the inequitable treatment suffered by foreign authors whose works lacked protection in the United States. 611 F. Supp. 2d, at 1172-1177.

The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that §514 survived First Amendment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. 609 F. 3d 1076 (2010);

We granted certiorari to consider petitioners’ challenge to § 514 under both the Copyright Clause and the First Amendment, 562 U. S. 1270 (2011), and now affirm.

II

We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact § 514. The Constitution states that “Congress shall have Power .. . [t]o promote the Progress of Science ... by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents.

A

The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 259, 266 (2007). Petitioners’ contrary argument relies primarily on the Constitution’s confinement of a copyright’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘limited [t]imes’ restriction *319by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22.

Our decision in Eldred is largely dispositive of petitioners’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copyrights. 537 U. S., at 192-193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted within constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time prescription, once set, becomes forever‘fixed’or‘inalterable.’” Id., at 199. “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Ibid. Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrained],” or “circumscribed.” Ibid, (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in Eldred and is similarly infirm.

The terms afforded works restored by §514 are no less “limited” than those the CTEA lengthened. In light of El-dred, petitioners do not here contend that the term Congress has granted U. S. authors — their lifetimes, plus 70 years— is unlimited. See 17 U. S. C. § 302(a). Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See Eldred, 537 U. S., at 199. Indeed, as earlier noted, see supra, at 307, 315, the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts.

The difference, petitioners say, is that the limited time had already passed for works in the public domain. What was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petitioners respond. Brief for Petitioners 22 (works in question “received a specific term of protection ... sometimes expressly set to zero”; “at the end of that period,” they “entered the public do*320main”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end.16

Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achievable. As in Eldred, the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See 537 U. S., at 198-200, 209-210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once disfavored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of perpetual copyrights.

B

Historical practice corroborates our reading of the Copyright Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514⅛ disturbance of that domain, petitioners argue, distinguishes their suit from Eldred’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbroken congressional practice” of granting preexpiration term extensions, 537 U. S., at 200. No comparable practice, they maintain, supports §514.

On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), § 1, 1 *321Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply with formalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recognized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790, and the act of 1802 ... men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884).21

*322Subsequent actions confirm that Congress has not understood the Copyright Clause to preclude protection for existing works. Several private bills restored the copyrights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 57, 9 Stat. 763; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 618; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 1396. These bills were unchallenged in court.

Analogous patent statutes, however, were upheld in litigation.22 In 1808, Congress passed a private bill restoring patent protection to Oliver Evans’ flour mill. When Evans sued for infringement, first Chief Justice Marshall in the Circuit Court, Evans v. Jordan, 8 F. Cas. 872 (No. 4,564) (Va. 1813), and then Justice Bushrod Washington for this Court, Evans v. Jordan, 9 Craneh 199 (1815), upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [Evans’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had constructed between the patent’s expiration and the bill’s passage. Id., at 202. See also Blanchard v. Sprague, 3 F. Cas. .648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which . . . was in public use and enjoyed by the community at the time of the passage of the act.”).

This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, *323and therefore open to exploitation without the inventor’s leave. Id., at 206-209.

Congress has also passed generally applicable legislation granting patents and copyrights to inventions and works that had lost protection. An 1832 statute authorized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statutory formalities rendered the original patent “invalid or inoperative.” Act of July 3, §3, 4 Stat. 559. An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileges” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain during World Wars I and II. See Act of Dec. 18, 1919, ch. 11, 41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732.24

Pointing to dictum in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966), petitioners would have us look past this history. In Graham, we stated that “Congress may not authorize the issuance of patents whose effects are *324to remove existent knowledge from the public domain, or to restrict free access to materials already available.” Id., at 6; post, at 358. But as we explained in Eldred, this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Rather, it “addressed an invention’s very eligibility for patent protection.” 537 U. S., at 202, n. 7.

Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Congress with extraordinary situations. Yet the TRIPS accord, leading the United States to comply in full measure with Berne, was also a signal event. See supra, at 312-313; cf. Eldred, 537 U. S., at 259, 264-265 (Breyer, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Convention). Given the authority we hold Congress has, we will not second-guess the political choice Congress made between leaving the public domain untouched and embracing Berne unstintingly. Cf. id., at 212-213.

C

Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protection. U. S. Const., Art. I, §8, el. 8. Perhaps counterintu-itively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, 383 U. S., at 5, and n. 1; Evans, 8 F. Cas., at 873 (Marshall, J.).

The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 344-345. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of . . . new works.” Brief for Petitioners 24; accord post, at 345, 351, 360. Because § 514 deals solely with works *325already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4.25

The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learning. In Eldred, we rejected an argument nearly identical to the one petitioners rehearse. The Eldred petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’... because it does not stimulate the creation of new works.” 537 U. S., at 211-212. In response to this argument, we held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” Id., at 222. And those permissible ends, we held, extended beyond the creation of new works. See id., at 205-206 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’” (quoting Perlmutter, Participation in the International Copyright System as a Means To Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 332 (2002))).26

Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copy*326right Clause confines the “Progress of Science” exclusively to “incentives for creation.” Id., at 324, n. 5 (internal quotation marks omitted). Evidence from the founding, moreover, suggests that inducing dissemination — as opposed to creation — was viewed as an appropriate means to promote science. See Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2d 37,44 (2002) (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] providing incentives not primarily for creation,” but for dissemination. Perlmutter, supra, at 324, n. 5. Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539,558 (1985) (emphasis added). See also Eldred, 537 U. S., at 206.27

Considered against this backdrop, §514 falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of existing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103-412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIA A); id., at 244, 247 (statement of Smith, IIPA), *327thereby benefiting copyright-intensive industries stateside and inducing greater investment in the creative process.

The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Progress of Science.” See Perlmutter, supra, at 332 (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the progress of science).28 Congress determined that exemplary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the rational judgment Congress made.

III

A

We next explain why the First Amendment does not inhibit the restoration authorized by § 514. To do so, we first recapitulate the relevant part of our pathmarking decision in Eldred. The petitioners in Eldred, like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the Eldred petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in Eldred, offended neither provision.

Concerning the First Amendment, we recognized that some restriction on expression is the inherent and intended *328effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” 537 U. S., at 219, we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free expression[:] By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Ibid, (quoting Harper & Row, 471 U. S., at 558 (internal quotation marks omitted)); see id., at 546 .(“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”).

We then described the “traditional contours” of copyright protection, i. e., the “idea/expression dichotomy” and the “fair use” defense.29 Both are recognized in our jurisprudence as “built-in First Amendment accommodations.” El-dred, 537 U. S., at 219; see Harper & Row, 471 U. S., at 560 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense).

The idea/expression dichotomy is codified at 17 U. S. C. § 102(b): “In no case does copyright protec[t] . . . any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . described, explained, illustrated, or embodied in [the copyrighted] work.” “Due to this [idea/ expression] distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author’s expression alone gains copyright protection. Eldred, 537 U. S., at 219; see Harper & Row, 471 U. S., at 556 (“idea/expression di*329chotomy strikefe] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (internal quotation marks omitted)).

The second “traditional contour,” the fair use defense, is codified at 17 U. S. C. § 107: “[T]he 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.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” Eldred, 537 U. S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholarship and comment, . . . even for parody” (internal quotation marks omitted)).

Given the “speech-protective purposes and safeguards” embraced by copyright law, see id., at 219, we concluded in Eldred that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 Section 514 leaves undisturbed the “idea/ expression” distinction and the “fair use” defense. Moreover, Congress adopted measures to ease the transition from a national scheme to an international copyright regime: It deferred the date from which enforcement runs, and it cushioned the impact of restoration on “reliance parties” who exploited foreign works denied protection before § 514 took effect. See supra, at 315-316 (describing 17 U. S. C. § 104A(c), (d), and (h)). See also Eldred, 537 U. S., at 220 *330(describing supplemental allowances and exemptions available to certain users to mitigate the CTEA’s impact).

B

Petitioners attempt to distinguish their challenge from the one turned away in Eldred. First Amendment interests of a higher order are at stake here, petitioners say, because they — unlike their counterparts in Eldred — enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain under copyright law’s “built-in safeguards” are, in their view, no substitute for the unlimited use they enjoyed before §514’s enactment. Nor, petitioners urge, does § 514⅛ “unprecedented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Eldred. Brief for Petitioners 42-43.

However spun, these contentions depend on an argument we considered and rejected above, namely, that the Constitution renders the public domain largely untouchable by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is police