US Copyright Office: 63fr19287

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FridayApril 17, 1998

Part II

Library of Congress

Copyright OfficeCopyright Restoration of Works inAccordance With the Uruguay RoundAgreements Act; List IdentifyingCopyrights Restored Under the UruguayRound Agreements Act for Which Noticesof Intent To Enforce Restored CopyrightsWere Filed in the Copyright Office;Notice

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The URAA’s amendment of 17 U.S.C. 104Areplaced section 104A under the North AmericanFree Trade Agreement Implementation Act (PublicLaw No. 103–182, 107 Stat. 2057, 2115 (1993)). TheUruguay Round Trade Agreements, Texts of Agreements, Implementing Bill, Statement of Administrative Action, and Required SupportingStatements, H.R. Doc. No. 316, 103d Cong., 2d Sess.324 (1994). See 60 FR 50414 (Sept. 29, 1995).

LIBRARY OF CONGRESSCopyright Office

[Docket No. 97–3D]

Copyright Restoration of Works inAccordance With the Uruguay RoundAgreements Act; List IdentifyingCopyrights Restored Under theUruguay Round Agreements Act forWhich Notices of Intent To EnforceRestored Copyrights Were Filed in theCopyright Office

AGENCY

:

Copyright Office, Library of Congress.

ACTION

:

Publication of Eighth List of Notices of Intent to Enforce CopyrightsRestored Under the Uruguay RoundAgreements Act.

SUMMARY

:

The Copyright Office ispublishing its eighth list of restoredcopyrights for which it has received andprocessed Notices of Intent to Enforce acopyright restored under the UruguayRound Agreements Act. Publication of the lists creates a record for the publicto identify copyright owners and workswhose copyright has been restored forwhich Notices of Intent to Enforce havebeen filed with the Copyright Office.Generally, this is the concluding NIE listof titles for copyright owners whoseeligibility to file in the Office expired onDecember 31, 1997.

EFFECTIVE DATE

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April 17, 1998.

FOR FURTHER INFORMATION CONTACT

:

Marilyn J. Kretsinger, Assistant GeneralCounsel, or Charlotte Douglass,Principal Legal Advisor to the GeneralCounsel, Copyright GC/I&R, Post OfficeBox 70400, Southwest Station,Washington, D.C. 20024. Telephone:(202) 707–8380. Telefax: (202) 707–8366.

SUPPLEMENTARY INFORMATION

:

I. Background

The Uruguay Round GeneralAgreement on Tariffs and Trade and theUruguay Round Agreements Act(URAA) (Public Law No. 103–465; 108Stat. 4809 (1994)) provide for therestoration of copyright in certain worksthat were in the public domain in theUnited States. Under section 104A of title 17

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of the United States Code asprovided by the URAA, copyrightprotection was restored on January 1,1996, in certain works by foreignnationals or domiciliaries of WorldTrade Organization (WTO) or Bernecountries that were not protected underthe copyright law for the reasons listedbelow in (2). Specifically, for restorationof copyright, a work must be an originalwork of authorship that on the date of restoration:(1) was not in the public domain inits source country through expiration of term of protection;(2) was in the public domain in theUnited States due to:(i) noncompliance with formalitiesimposed at any time by United Statescopyright law, including failure of renewal, publishing the work without aproper notice, or failure to comply withany manufacturing requirements;(ii) lack of subject matter protection inthe case of sound recordings fixedbefore February 15, 1972; or(iii) lack of national eligibility (e.g.,the work is from a country with whichthe United States did not have copyrightrelations at the time of the work’spublication); and(3) has at least one author (or in thecase of sound recordings, rightholder)who was, at the time the work wascreated, a national or domiciliary of aneligible country. If the work waspublished, it must have been firstpublished in an eligible country and notpublished in the United States within30 days of first publication. See 17U.S.C. 104A(h)(6).A work meeting these requirements isprotected ‘‘for the remainder of the termof copyright that the work would haveotherwise been granted in the UnitedStates if the work never entered thepublic domain in the United States.’’ 17U.S.C. 104A(a)(1)(B).Under the URAA, copyright inrestored works vests automatically onthe date of restoration. 17 U.S.C.104A(a)(1)(A). That date is January 1,1996, if the particular nation wasalready a member of the World TradeOrganization (WTO) or the BerneConvention. Otherwise, the effectivedate of restoration is the date of aparticular nation’s adherence to theWTO or the Berne Convention or thedate when the President issues aproclamation extending copyrightrestoration to that nation.Although the copyright owner mayimmediately enforce the restoredcopyright against individuals whoinfringe his or her rights on or after theeffective date of restoration, thecopyright owner’s right to enforce therestored copyright is delayed againstreliance parties. Typically, a relianceparty is one who was already using thework before December 8, 1994, the datethe URAA was enacted. See 17 U.S.C.104A(h)(4). Before a copyright ownercan enforce a restored copyright againsta reliance party, the copyright ownermust file a Notice of Intent (NIE) withthe Copyright Office or serve an NIE onsuch a party.An NIE may be filed in the CopyrightOffice within 24 months of the date of restoration of copyright. Alternatively,an owner may serve an NIE on anindividual reliance party at any timeduring the term of copyright; however,such notices are effective only againstthe party served and those who haveactual knowledge of the notice and itscontents. NIEs appropriately filed withthe Copyright Office and publishedherein serve as constructive notice to allreliance parties.

II. Administrative Processing

Pursuant to the URAA, the Office ispublishing its eighth list identifyingrestored works for notices of intent toenforce a restored copyright filed withthe Office. 17 U.S.C. 104A(e)(1)(B). Theearlier lists were published betweenMay 1, 1996, and January 30, 1998. 61FR 19372 (May 1, 1996), 61 FR 46134(Aug. 30, 1996), 61 FR 68454 (Dec. 27,1996), 62 FR 20211 (April 25, 1997), 62FR 44842 (Aug. 22, 1997), 62 FR 66766(Dec. 19, 1997), and 63 FR 5142 (Jan. 30,1998). To allow for processing this NIEinformation, the Office closed the recordfor publication approximately twoweeks before forwarding this record forpublication. Accordingly, the NIEslisted herein are those entered into thepublic records of the Office betweenJanuary 21, 1998 and April 3, 1998.NIEs not processed by April 3, 1998,will appear on the next four-month list,to be published on August 14, 1998.NIEs for works restored to copyrighton January 1, 1996, must have beenpostmarked on or before December 31,1997, to be accepted in the CopyrightOffice for publication in the

FederalRegister

. See 17 U.S.C. 104A(d)(2). NIEsthat were received in the Office too latefor

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publication will bereturned to the remitter unrecorded, andthe fee will be refunded. On the otherhand, owners of works that are stillwithin their eligible filing period maycontinue to file such notices with theCopyright Office and receiveconstructive notice, and the Office willcontinue to publish a list of eligibleNIEs in the

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.

III. Correction of Previously Filed NIEs

Correction NIEs for major errors(essentially, major errors in title andowner information) on any NIE filedmust be submitted within the eligibilityperiod. 37 CFR 201.34 (d)(6)(i). Minor

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Not all files are available after 9:30 p.m. onweekdays. On Sundays, all files may not beavailable from 5 p.m.—8 p.m.

errors may be corrected at any timewithout regard to eligibility for filing,pursuant to the interim regulation onCorrection NIEs, published at 62 FR55736 (Oct. 28, 1997).

IV. On-Line Availability of NIE Lists

Using the information providedherein, one may search the Office’sdatabase to obtain additionalinformation about a particular NIE. NIEsare located in what is known as theCopyright Office History Documents(COHD) file, which is available fromcomputer terminals located in theCopyright Office itself or from terminalslocated in other parts of the Library of Congress through the Library of Congress Information System (LOCIS).Alternative ways to connect throughInternet are (i) the World Wide Web(WWW), using the Copyright OfficeHome Page at: http://www.loc.gov/ copyright; or (ii) connect directly toLOCIS through the telnet address atlocis.loc.gov. WWW is available 24hours a day. LOCIS is available 24 hoursa day Monday through Friday, U.S.Eastern Time; Saturday, until 5 p.m.;and Sunday after 11 a.m.

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Information available online includes:the title or brief description if untitled;an English translation of the title; thealternative titles if any; the name of thecopyright owner or owner of one ormore exclusive rights, the date of receiptof the NIE in the Copyright Office; thedate of publication in the

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; and the address, telephone andtelefax number of the copyright owner.If given on the NIE, the onlineinformation will also include theauthor, the type of work, and the rightscovered by the notice. See 37 CFR201.33(f). For the purpose of researchingthe full Office record of NIEs on theInternet, the Office has made onlinesearching instructions accessiblethrough the Copyright Office HomePage. Researchers can access themthrough the Library of Congress HomePage on the World Wide Web byselecting the copyright link. Select themenu item ‘‘Copyright Office Records’’and/or ‘‘URAA, GATT Amends U.S.law.’’ In addition to online records,images of the complete NIEs as filed areon optical disc and available from theCopyright Office.

V. Alien Properties Custodian Act

The Register of Copyrights hasreceived several inquiries about the‘‘Alien Property Custodian’’ exclusionin the Uruguay Round Agreements Act(URAA), Pub. L. No. 103–465, 108 Stat.4809 (1994). That provision excludesfrom copyright restoration under theURAA ‘‘[a]ny work in which thecopyright was ever owned oradministered by the Alien PropertyCustodian and in which the restoredcopyright would be owned by agovernment or instrumentality thereof.’’17 U.S.C. 104A(a)(1)(B)(2). Thelegislative history of the URAA is silenton the application and scope of thisexception. See Statement of Administrative Action, H. Doc. No. 103–316 (1994). The purpose of this noticeis to provide background information toguide those seeking to determinewhether or not the exception applies toa particular work.

A. Background—Alien PropertyCustodian

The Office of Alien Property wasestablished under the authority of theTrading with the Enemy Act (50 U.S.C.app. sec. 39, 62 Stat. 1246 (1948)), tohandle problems involving assets in theUnited States owned by nationals of enemy countries in the Second WorldWar. The Alien Property Custodian wasempowered to ‘‘hold’’ copyrights inworks in which an enemy foreigncountry or its nationals had an interest,and require that all royalties due for useof those works be paid to the UnitedStates government. As many as 300,000vested copyrights were controlled by thegovernment in 1960, according to aHouse Report (No. 2091, July 31, 1962,to accompany H.R. 9045). Theacquisitions were accomplished througha series of vesting orders, recorded withthe U.S. Copyright Office and publishedin the

Federal Register

. These vestingorders caused ownership of the physicalmaterials (for example, film prints) andcopyrights for specific works to ‘‘vest’’with the Attorney General of the UnitedStates.In 1962, Congress returned most of the remaining seized copyrights to thecopyright owners in their countries of origin, although the United Statesretained the right ‘‘to reproduce, for itsown use, or exhibit any divestedcopyrighted motion picture films.’’ Pub.L. No. 87–846 (1962). Title to thephysical prints of these motion pictureswas transferred to the Library of Congress under Pub. L. No. 87–861(1962), giving the Library ‘‘completediscretion to retain such prints and toreproduce copies thereof, or to disposeof them in any manner it deemsappropriate.’’The current copyright status of worksonce held by the Alien PropertyCustodian will depend on a number of variables. One such variable is the ageof the work; the term of protection forpre-1923 published works will haveexpired. Another variable is the extentof compliance with formalities underprior U.S. law. While some copyrightswere renewed by the Alien PropertyCustodian, some of the works may havefallen into the public domain forreasons including failure to renew orother lack of compliance withformalities. These works that did fallinto the public domain due to lack of compliance with formalities may havebeen restored to copyright by therestoration provisions of the URAA,described below. Assuming that suchworks were otherwise eligible, whetherthey were restored turns on whetherthey fell within the Alien PropertyCustodian exception to restoration.

B. The Exception to Restoration Under the URAA for Works Held by the AlienProperty Custodian

Under a new section 104A of title 17of the United States Code created by theURAA, copyright protection wasrestored on January 1, 1996, in certainworks of foreign nationals ordomiciliaries of World TradeOrganization (WTO) or Berne countries,or at a later date for countriessubsequently joining WTO or Berne. Toqualify for restoration, a work must bean original work of authorship that isnot a United States work and is not inthe public domain in its source countrythrough expiration of term of protection.Rather, the work must be in the publicdomain in the United States due tononcompliance with formalities, lack of subject matter protection in the case of sound recordings fixed before February15, 1972, or lack of copyright relationsbetween the country of origin and theUnited States. 17 U.S.C. 104A(h)(6).One category of works, however, wasnot restored even if the work met theabove requirements. Specifically, underthe ‘‘Alien Property CustodianException,’’ a work was not restored if (1) the copyright was ever owned oradministered by the Alien PropertyCustodian, and (2) the restoredcopyright would, as of January 1, 1996,be owned by a government or itsinstrumentality. 17 U.S.C. 104A(a)(2). Awork is excluded from restoration underthe exception only when both elementsof the exception are met.Determining whether a particularwork falls within the exception may becomplicated. As to the first element of the exception, the vesting ordersdescribed above would indicate whichworks had been held or administered bythe Alien Property Custodian. There isno one source where these vestingorders may be found. However, the