[Federal Register: February 9, 1995 (Volume 60, Number 27)]
[Notices]
[Page 7793-7795]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe95-96]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
[Docket No. RM 95-1]
General Provisions--Copyright Restoration of Certain Berne and
WTO Works
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of Policy Decision and Public Meeting.
-----------------------------------------------------------------------
SUMMARY: The Copyright Office publishes this notice to inform the
public about its obligations concerning restoration of certain
copyrights under the Uruguay Round Agreements Act (URAA) signed into
law on December 8, 1994. This Act restores copyright in certain works
effective January 1, 1996, and requires the Copyright Office to
establish procedures for filing notices of intent to enforce copyright
and for registering works in which copyright has been restored. This
notice summarizes the Act's copyright restoration provisions and
informs the public that there will be an open meeting to solicit
information and discuss implementation of the copyright provisions on
March 20, 1995.
DATES: A public meeting will be held in Room 414 of the James Madison
Memorial Building, 101 Independence Avenue, S.E., Washington, D.C., on
March 20, 1995, beginning at 10:00 a.m. Interested parties should send
a statement of interest and issues list to the address given below by
March 10, 1995.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General
Counsel, P.O. Box 70400, Southwest Station, Washington, D.C. 20024.
Telephone (202) 707-8380. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION
I. Background
On December 8, 1994, President Clinton signed the Act which may be
cited as the ``Uruguay Round Agreements Act'' (URAA), Pub. L. No. 103-
465, 108 Stat. 4809. On December 15, 1993, the General Agreement on
Tariffs and Trade (GATT) negotiators concluded the Uruguay Round which
included an agreement on the Trade-Related Aspects of Intellectual
Property Rights (TRIPs). President Clinton signed on to the World Trade
Organization Agreement (WTO Agreement) on April 15, 1994. The URAA was
introduced on September 27, 1994.
The URAA is a complex and lengthy document covering many areas of
United States trade. Title V, sections 501-534, of this Act contains
several significant copyright amendments. They amend the software
rental provision found in 17 U.S.C. 109(b) by eliminating the
expiration or sunset date (October 1, 1995), amend Titles 17 and 18 to
create civil and criminal remedies for ``bootlegging'' sound recordings
of live musical performances and music videos, and add a new 17 U.S.C.
104A to restore copyright in certain foreign works. [[Page 7794]]
II. Restoration of Copyright of Eligible Works
Section 514 of the URAA restores copyright protection in certain
foreign works still under protection in a source country but in the
public domain in the United States. It also grants protection to sound
recordings fixed prior to February 15, 1972.<SUP>1 Copyrights in
eligible foreign works are restored automatically from the ``date of
restoration.'' Since restoration is automatic, the owner of the
restored copyright does not have to register this work. To qualify for
restoration, a work must be an original work of authorship that is
protected under subsection (a), is not in the public domain in the
source country through expiration of the term of protection, and is in
the public domain in the United States because of noncompliance with
formalities, lack of subject matter protection in the case of a sound
recording fixed before February 15, 1972, or lack of national
eligibility. A further requirement to qualify is that, at the time the
work was created, at least one author or rightholder (in the case of a
sound recording) must have been a national or domiciliary of an
eligible country; and if the work is published, it must not have been
published in the United States within 30 days of first publication in
the eligible country. Amended sec. 104A(h)(6).
\1\URAA, title V, ``Intellectual Property,'' sec. 514,
``Restored Works.'' Further references to this section will be to
the amended 104A.
---------------------------------------------------------------------------
An eligible country is one, other than the United States, that is a
member of the Berne Convention for the Protection of Literary and
Artistic Works (Berne Convention) or a member of the World Trade
Organization (WTO) or is subject to a presidential proclamation that
extends copyright restoration to works of that country on the basis of
reciprocal treatment to the works of United States nationals or
domiciliaries.
III. Effective Date of Restoration
Section 514(a) of the URAA provides that the initial date of
restoration of a restored copyright is ``the date on which the
Agreement on Trade-Related Aspects of Intellectual Property Rights
referred to in section 101(d)(15) of the [URAA] enters into force with
respect to the United States.'' Although questions have been raised
about the actual date of copyright restoration established under
section 514(a), in light of the entire URAA, the Statement of
Administrative Action (SAA), the TRIPs Agreement, and other legislative
history-related materials, the effective date of copyright restoration
is January 1, 1996.
The SAA accompanying the legislation provides, in relevant part,
that copyright will be restored on the date ``when the TRIPs
Agreement's obligations take effect for the United States.''<SUP>2 The
TRIPs Agreement states that no Member, including the United States,
``shall be obliged to apply the provisions of this Agreement before the
expiry of a general period of one year following the date of entry into
force of the Agreement Establishing WTO.''<SUP>3 Since the WTO came
into effect on January 1, 1995, the TRIPs Agreement's obligations take
effect for the United States on January 1, 1996. Consequently, January
1, 1996, is the date on which copyright will be restored under the
URAA.
\2\Congress specifically approved the Statement of
Administrative Action (SAA). URAA sec. 101 (a)(2).
\3\Agreement on TRIPs, VI: Arrangements, Article 65.
---------------------------------------------------------------------------
This conclusion is amply supported by the legislative history of
the URAA and the practical necessities surrounding implementation of
the restoration provision. The Joint Report on the Senate version of
the URAA bill specifically states that the ``bill would automatically
restore copyright protection for qualifying works * * * one year after
the WTO comes into being.''<SUP>4 Furthermore, the Justice Department
predicated its memorandum to the General Counsel to the United States
Trade Representative as to the constitutionality of the restoration
provisions on the date of restoration being January 1, 1996.<SUP>5
Finally, the URAA requires the Copyright Office to publish rules
governing the filing of notices of intent to enforce a restored
copyright 90 days before the day that copyright restoration takes
place.<SUP>6 Because this publishing requirement would have been
impossible to accomplish if the effective date were January 1, 1995,
the only reasonable interpretation of the URAA is that the effective
date of restoration is January 1, 1996.
\4\Joint Report of the Committee on Finance, Committee on
Agriculture, Nutrition and Forestry, Committee on Governmental
Affairs of the United States Senate to accompany the Uruguay Round
Agreements Act, S. 2467, S. Rep. No. 412, 103d Cong., 2d Sess. 225
(1994).
\5\See Memorandum from Chris Schroeder, Counsellor to the
Assistant Attorney General, Office of Legal Counsel, United States
Dept. of Justice, to Ira S. Shapiro, General Counsel, USTR, on
Whether Certain Copyright Provisions in the Draft Legislation to
Implement the Uruguay Round of Multilateral Trade Negotiations Would
Constitute a Taking Under the Fifth Amendment (July 29, 1994).
\6\Amended sec. 104A(e)(1)(D)(i).
---------------------------------------------------------------------------
IV. Notification to Reliance Parties
Concern for Reliance Parties
Congress was concerned about the effect of restoring copyrights to
works already in the public domain; some of which are being actively
and legally exploited in the United States. The URAA refers to the
businesses and individuals using such works as reliance parties and
immunizes them for their acts prior to the date of automatic copyright
restoration. Reliance parties must stop reproducing any work in which a
copyright is restored and must not prepare new derivative works that
reproduce significant elements of a work on the date these parties have
effective notice that an owner intends to enforce the restored work.
This effective notice date is either the date the Copyright Office
publishes in the Federal Register the list identifying the works on
which notices of intent to enforce have been filed or the date the
reliance party received actual notice of the owner's intent to enforce
the restored copyright.
Filing Notices of Intent to Enforce Copyright
The URAA gives copyright owners of restored copyrights two ways to
serve notice of their intent to enforce the copyright on reliance
parties. They may file an intent to enforce the restored copyright in
the work with the Copyright Office or they may serve actual notice of
the intent to enforce the restored copyright against a particular
reliance party. If they choose the second way, they will have to notify
each reliance party who may have used a work and identify the use.
Consequently, it seems possible that many owners of copyright in
restored works will choose to file notices of intent to enforce
copyright with the Copyright Office. Based on the notices received, the
Office will publish lists of notices of intent to enforce restored
works beginning in May 1996 and continuing at regular intervals not to
exceed four months thereafter.
The URAA specifies the minimum content of the notices of intent to
enforce. It requires that the notice be signed by the owner or the
owner's agent.<SUP>7 In addition to the signature, it must contain the
title, including an English-language translation, and any other
alternative titles known to the owner by which the restored work may be
identified, the name of the owner, [[Page 7795]] and an address and
telephone number at which the owner can be located. Although the Office
can ask for additional information, failure to provide such information
will not invalidate the notice of intent.
\7\Ownership of a restored work vests initially in the author or
initial rightholder (if the work is a sound recording) of the work
as determined by the law of the source country of the work. Amended
sec. 104A(b).
---------------------------------------------------------------------------
Grace Period
Reliance parties have a 12 month grace period after they have been
notified either by publication in the Federal Register or by actual
notice to sell off previously manufactured stock, to publicly perform
or publicly display the work, or to authorize others to conduct these
activities. Except for reliance parties who created derivative works,
reliance parties must cease using the work after the 12-month grace
period unless they reach a licensing agreement with the copyright owner
for continued use of the restored work. Subsection (d)(3) of amended
section 104A contains special rules with respect to derivative works
based on underlying foreign works in which copyright has been restored
such as a translation of a foreign language work or a motion picture
based on a book or a play.
Procedure for Notification
The Copyright Office will publish final regulations establishing
the procedures for filing notices of intent to enforce by October 1,
1995. Owners of restored copyrights in eligible countries may begin
filing notices of intent to enforce restored copyrights on January 1,
1996.
Registration of Restored Works
The URAA also directs the Copyright Office to establish procedures
permitting the owners of restored copyright to file applications to
register a claim to copyright simultaneously with the notice of intent.
The Office will also publish these procedures by October 1, 1995.
V. Public Comment on Procedures for Notices of Intent to Enforce
and Registration
The restoration provisions are complex, and we have a number of
questions about their implementation. To assist us in identifying all
of the issues and to move the process forward, we are soliciting public
comment, including comment from both potential owners of restored works
and potential reliance parties. We will hold a public meeting in Room
414 of the James Madison Memorial Building of the Library of Congress,
101 Independence Ave. S.E. at 10:00 a.m. on March 20. Parties wishing
to attend the meeting should notify the Acting General Counsel by March
10, 1995, by writing to Copyright GC/I&R, P.O. Box 70400, Southwest
Station, Washington, D.C. 20024, calling (202) 707-8380, or via
telefax: (202) 707-8366. Their notification should give the party's
name, an indication of association, an address and telefax number and,
if possible, identify the issues he or she wish to address. Since the
Office will be publishing a Notice of Proposed Rulemaking after the
March 20 meeting, it will accept comments on the implementation
procedures through April 18, 1995. Any party who wishes to receive the
Notice of Proposed Rulemaking should let the Office know.
With respect to the issues, we are focusing on the notices of
intent to enforce and the registration procedures. For example, one
question is what additional information should be included in the
notices of intent to enforce? What should be the extent of the indexing
record? Should the notices be integrated into the online files of the
Copyright Office and made available on the Internet? Can, and should,
the Office publish in the Federal Register at shorter intervals than
the four months specified in the statute? Finally, what should the
filing fee be?
With respect to registration, should there be a new registration
form for restored copyrights? With respect to the author, for purposes
of registration, should the author be the author as defined in section
201 of the United States copyright law or the author as determined by
the law of the source country? Should the application form require a
designation of the source country? Who should be listed as the
claimant--the author as determined by the law of the source country
(or, if the work is a sound recording, the rightholder) or the
individual or entity that owns all of the restored rights in the United
States on the date the application is submitted? If the answer is other
than the party that the rights vested in, should a transfer statement
be required? How detailed should a transfer statement be, that is,
should it, for example, include the date of the transfer? What should
the fee for registration be? With respect to the deposit of copies and
phonorecords, should the current practices apply or should new
provisions be crafted?
Dated: February 3, 1995.
Marybeth Peters,
Register of Copyrights.
James H. Billington,
The Librarian of Congress.
[FR Doc. 95-3255 Filed 2-8-95; 8:45 am]
BILLING CODE 1410-30-P