[Federal Register Volume 60, Number 27 (Thursday, February 9, 1995)]
[Notices]
[Pages 7793-7795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3255]



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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.

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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.
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    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.
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    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).
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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).
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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]
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