§ 104A. — Copyright in restored works.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC104A]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 104A. Copyright in restored works
(a) 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.
(B) Any work in which copyright is restored under this
section shall subsist for the remainder of the term of copyright
that the work would have otherwise been granted in the United
States if the work never entered the public domain in the United
States.
(2) Exception.--Any work in which the copyright was ever owned
or administered by the Alien Property Custodian and in which the
restored copyright would be owned by a government or instrumentality
thereof, is not a restored work.
(b) Ownership of Restored Copyright.--A restored work vests
initially in the author or initial rightholder of the work as determined
by the law of the source country of the work.
(c) Filing of Notice of Intent to Enforce Restored Copyright Against
Reliance Parties.--On or after the date of restoration, any person who
owns a copyright in a restored work or an exclusive right therein may
file with the Copyright Office a notice of intent to enforce that
person's copyright or exclusive right or may serve such a notice
directly on a reliance party. Acceptance of a notice by the Copyright
Office is effective as to any reliance parties but shall not create a
presumption of the validity of any of the facts stated therein. Service
on a reliance party is effective as to that reliance party and any other
reliance parties with actual knowledge of such service and of the
contents of that notice.
(d) Remedies for Infringement of Restored Copyrights.--
(1) Enforcement of copyright in restored works in the absence of
a reliance party.--As against any party who is not a reliance party,
the remedies provided in chapter 5 of this title shall be available
on or after the date of restoration of a restored copyright with
respect to an act of infringement of the restored copyright that is
commenced on or after the date of restoration.
(2) Enforcement of copyright in restored works as against
reliance parties.--As against a reliance party, except to the extent
provided in paragraphs (3) and (4), the remedies provided in chapter
5 of this title shall be available, with respect to an act of
infringement of a restored copyright, on or after the date of
restoration of the restored copyright if the requirements of either
of the following subparagraphs are met:
(A)(i) The owner of the restored copyright (or such owner's
agent) or the owner of an exclusive right therein (or such
owner's agent) files with the Copyright Office, during the 24-
month period beginning on the date of restoration, a notice of
intent to enforce the restored copyright; and
(ii)(I) the act of infringement commenced after the end of
the 12-month period beginning on the date of publication of the
notice in the Federal Register;
(II) the act of infringement commenced before the end of the
12-month period described in subclause (I) and continued after
the end of that 12-month period, in which case remedies shall be
available only for infringement occurring after the end of that
12-month period; or
(III) copies or phonorecords of a work in which copyright
has been restored under this section are made after publication
of the notice of intent in the Federal Register.
(B)(i) The owner of the restored copyright (or such owner's
agent) or the owner of an exclusive right therein (or such
owner's agent) serves upon a reliance party a notice of intent
to enforce a restored copyright; and
(ii)(I) the act of infringement commenced after the end of
the 12-month period beginning on the date the notice of intent
is received;
(II) the act of infringement commenced before the end of the
12-month period described in subclause (I) and continued after
the end of that 12-month period, in which case remedies shall be
available only for the infringement occurring after the end of
that 12-month period; or
(III) copies or phonorecords of a work in which copyright
has been restored under this section are made after receipt of
the notice of intent.
In the event that notice is provided under both subparagraphs (A)
and (B), the 12-month period referred to in such subparagraphs shall
run from the earlier of publication or service of notice.
(3) Existing derivative works.--(A) In the case of a derivative
work that is based upon a restored work and is created--
(i) before the date of the enactment of the Uruguay Round
Agreements Act, if the source country of the restored work is an
eligible country on such date, or
(ii) before the date on which the source country of the
restored work becomes an eligible country, if that country is
not an eligible country on such date of enactment,
a reliance party may continue to exploit that derivative work for
the duration of the restored copyright if the reliance party pays to
the owner of the restored copyright reasonable compensation for
conduct which would be subject to a remedy for infringement but for
the provisions of this paragraph.
(B) In the absence of an agreement between the parties, the
amount of such compensation shall be determined by an action in
United States district court, and shall reflect any harm to the
actual or potential market for or value of the restored work from
the reliance party's continued exploitation of the work, as well as
compensation for the relative contributions of expression of the
author of the restored work and the reliance party to the derivative
work.
(4) Commencement of infringement for reliance parties.--For
purposes of section 412, in the case of reliance parties,
infringement shall be deemed to have commenced before registration
when acts which would have constituted infringement had the restored
work been subject to copyright were commenced before the date of
restoration.
(e) Notices of Intent To Enforce a Restored Copyright.--
(1) Notices of intent filed with the copyright office.--(A)(i) A
notice of intent filed with the Copyright Office to enforce a
restored copyright shall be signed by the owner of the restored
copyright or the owner of an exclusive right therein, who files the
notice under subsection (d)(2)(A)(i) (hereafter in this paragraph
referred to as the ``owner''), or by the owner's agent, shall
identify the title of the restored work, and shall include an
English translation of the title and any other alternative titles
known to the owner by which the restored work may be identified, and
an address and telephone number at which the owner may be contacted.
If the notice is signed by an agent, the agency relationship must
have been constituted in a writing signed by the owner before the
filing of the notice. The Copyright Office may specifically require
in regulations other information to be included in the notice, but
failure to provide such other information shall not invalidate the
notice or be a basis for refusal to list the restored work in the
Federal Register.
(ii) If a work in which copyright is restored has no formal
title, it shall be described in the notice of intent in detail
sufficient to identify it.
(iii) Minor errors or omissions may be corrected by further
notice at any time after the notice of intent is filed. Notices of
corrections for such minor errors or omissions shall be accepted
after the period established in subsection (d)(2)(A)(i). Notices
shall be published in the Federal Register pursuant to subparagraph
(B).
(B)(i) The Register of Copyrights shall publish in the Federal
Register, commencing not later than 4 months after the date of
restoration for a particular nation and every 4 months thereafter
for a period of 2 years, lists identifying restored works and the
ownership thereof if a notice of intent to enforce a restored
copyright has been filed.
(ii) Not less than 1 list containing all notices of intent to
enforce shall be maintained in the Public Information Office of the
Copyright Office and shall be available for public inspection and
copying during regular business hours pursuant to sections 705 and
708.
(C) The Register of Copyrights is authorized to fix reasonable
fees based on the costs of receipt, processing, recording, and
publication of notices of intent to enforce a restored copyright and
corrections thereto.
(D)(i) Not later than 90 days before the date the Agreement on
Trade-Related Aspects of Intellectual Property referred to in
section 101(d)(15) of the Uruguay Round Agreements Act enters into
force with respect to the United States, the Copyright Office shall
issue and publish in the Federal Register regulations governing the
filing under this subsection of notices of intent to enforce a
restored copyright.
(ii) Such regulations shall permit owners of restored copyrights
to file simultaneously for registration of the restored copyright.
(2) Notices of intent served on a reliance party.--(A) Notices
of intent to enforce a restored copyright may be served on a
reliance party at any time after the date of restoration of the
restored copyright.
(B) Notices of intent to enforce a restored copyright served on
a reliance party shall be signed by the owner or the owner's agent,
shall identify the restored work and the work in which the restored
work is used, if any, in detail sufficient to identify them, and
shall include an English translation of the title, any other
alternative titles known to the owner by which the work may be
identified, the use or uses to which the owner objects, and an
address and telephone number at which the reliance party may contact
the owner. If the notice is signed by an agent, the agency
relationship must have been constituted in writing and signed by the
owner before service of the notice.
(3) Effect of material false statements.--Any material false
statement knowingly made with respect to any restored copyright
identified in any notice of intent shall make void all claims and
assertions made with respect to such restored copyright.
(f) Immunity From Warranty and Related Liability.--
(1) In general.--Any person who warrants, promises, or
guarantees that a work does not violate an exclusive right granted
in section 106 shall not be liable for legal, equitable, arbitral,
or administrative relief if the warranty, promise, or guarantee is
breached by virtue of the restoration of copyright under this
section, if such warranty, promise, or guarantee is made before
January 1, 1995.
(2) Performances.--No person shall be required to perform any
act if such performance is made infringing by virtue of the
restoration of copyright under the provisions of this section, if
the obligation to perform was undertaken before January 1, 1995.
(g) Proclamation of Copyright Restoration.--Whenever the President
finds that a particular foreign nation extends, to works by authors who
are nationals or domiciliaries of the United States, restored copyright
protection on substantially the same basis as provided under this
section, the President may by proclamation extend restored protection
provided under this section to any work--
(1) of which one or more of the authors is, on the date of first
publication, a national, domiciliary, or sovereign authority of that
nation; or
(2) which was first published in that nation.
The President may revise, suspend, or revoke any such proclamation or
impose any conditions or limitations on protection under such a
proclamation.
(h) Definitions.--For purposes of this section and section 109(a):
(1) The term ``date of adherence or proclamation'' means the
earlier of the date on which a foreign nation which, as of the date
the WTO Agreement enters into force with respect to the United
States, is not a nation adhering to the Berne Convention or a WTO
member country, becomes--
(A) a nation adhering to the Berne Convention;
(B) a WTO member country;
(C) a nation adhering to the WIPO Copyright Treaty;
(D) a nation adhering to the WIPO Performances and
Phonograms Treaty; or
(E) subject to a Presidential proclamation under subsection
(g).
(2) The ``date of restoration'' of a restored copyright is--
(A) January 1, 1996, if the source country of the restored
work is a nation adhering to the Berne Convention or a WTO
member country on such date, or
(B) the date of adherence or proclamation, in the case of
any other source country of the restored work.
(3) The term ``eligible country'' means a nation, other than the
United States, that--
(A) becomes a WTO member country after the date of the
enactment of the Uruguay Round Agreements Act;
(B) on such date of enactment is, or after such date of
enactment becomes, a nation adhering to the Berne Convention;
(C) adheres to the WIPO Copyright Treaty;
(D) adheres to the WIPO Performances and Phonograms Treaty;
or
(E) after such date of enactment becomes subject to a
proclamation under subsection (g).
(4) The term ``reliance party'' means any person who--
(A) with respect to a particular work, engages in acts,
before the source country of that work becomes an eligible
country, which would have violated section 106 if the restored
work had been subject to copyright protection, and who, after
the source country becomes an eligible country, continues to
engage in such acts;
(B) before the source country of a particular work becomes
an eligible country, makes or acquires 1 or more copies or
phonorecords of that work; or
(C) as the result of the sale or other disposition of a
derivative work covered under subsection (d)(3), or significant
assets of a person described in subparagraph (A) or (B), is a
successor, assignee, or licensee of that person.
(5) The term ``restored copyright'' means copyright in a
restored work under this section.
(6) 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 copyright 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; and
(E) if the source country for the work is an eligible
country solely by virtue of its adherence to the WIPO
Performances and Phonograms Treaty, is a sound recording.
(7) The term ``rightholder'' means the person--
(A) who, with respect to a sound recording, first fixes a
sound recording with authorization, or
(B) who has acquired rights from the person described in
subparagraph (A) by means of any conveyance or by operation of
law.
(8) The ``source country'' of a restored work is--
(A) a nation other than the United States;
(B) in the case of an unpublished work--
(i) the eligible country in which the author or
rightholder is a national or domiciliary, or, if a restored
work has more than 1 author or rightholder, of which the
majority of foreign authors or rightholders are nationals or
domiciliaries; or
(ii) if the majority of authors or rightholders are not
foreign, the nation other than the United States which has
the most significant contacts with the work; and
(C) in the case of a published work--
(i) the eligible country in which the work is first
published, or
(ii) if the restored work is published on the same day
in 2 or more eligible countries, the eligible country which
has the most significant contacts with the work.
(Added Pub. L. 103-182, title III, Sec. 334(a), Dec. 8, 1993, 107 Stat.
2115; amended Pub. L. 103-465, title V, Sec. 514(a), Dec. 8, 1994, 108
Stat. 4976; Pub. L. 104-295, Sec. 20(e)(2), Oct. 11, 1996, 110 Stat.
3529; Pub. L. 105-80, Sec. 2, Nov. 13, 1997, 111 Stat. 1530; Pub. L.
105-304, title I, Sec. 102(c), Oct. 28, 1998, 112 Stat. 2862.)
References in Text
The date of the enactment of the Uruguay Round Agreements Act,
referred to in subsecs. (d)(3)(A) and (h)(3), is the date of enactment
of Pub. L. 103-465, which was approved Dec. 8, 1994.
Section 101(d)(15) of the Uruguay Round Agreements Act, referred to
in subsec. (e)(1)(D)(i), is classified to section 3511(d)(15) of Title
19, Customs Duties.
Amendments
1998--Subsec. (h)(1)(A) to (E). Pub. L. 105-304, Sec. 102(c)(1),
added subpars. (A) to (E) and struck out former subpars. (A) and (B)
which read as follows:
``(A) a nation adhering to the Berne Convention or a WTO member
country; or
``(B) subject to a Presidential proclamation under subsection (g).''
Subsec. (h)(3). Pub. L. 105-304, Sec. 102(c)(2), amended par. (3)
generally. Prior to amendment, par. (3) read as follows: ``The term
`eligible country' means a nation, other than the United States, that--
``(A) becomes a WTO member country after the date of the
enactment of the Uruguay Round Agreements Act;
``(B) on such date of enactment is, or after such date of
enactment becomes, a member of the Berne Convention; or
``(C) after such date of enactment becomes subject to a
proclamation under subsection (g).
For purposes of this section, a nation that is a member of the Berne
Convention on the date of the enactment of the Uruguay Round Agreements
Act shall be construed to become an eligible country on such date of
enactment.''
Subsec. (h)(6)(E). Pub. L. 105-304, Sec. 102(c)(3), added subpar.
(E).
Subsec. (h)(8)(B)(i). Pub. L. 105-304, Sec. 102(c)(4), inserted ``of
which'' before ``the majority'' and struck out ``of eligible countries''
after ``domiciliaries''.
Subsec. (h)(9). Pub. L. 105-304, Sec. 102(c)(5), struck out par. (9)
which read as follows: ``The terms `WTO Agreement' and `WTO member
country' have the meanings given those terms in paragraphs (9) and (10),
respectively, of section 2 of the Uruguay Round Agreements Act.''
1997--Subsec. (d)(3)(A). Pub. L. 105-80, Sec. 2(1), amended subpar.
(A) generally. Prior to amendment, subpar. (A) read as follows: ``In the
case of a derivative work that is based upon a restored work and is
created--
``(i) before the date of the enactment of the Uruguay Round
Agreements Act, if the source country of the derivative work is an
eligible country on such date, or
``(ii) before the date of adherence or proclamation, if the
source country of the derivative work is not an eligible country on
such date of enactment,
a reliance party may continue to exploit that work for the duration of
the restored copyright if the reliance party pays to the owner of the
restored copyright reasonable compensation for conduct which would be
subject to a remedy for infringement but for the provisions of this
paragraph.''
Subsec. (e)(1)(B)(ii). Pub. L. 105-80, Sec. 2(2), struck out at end
``Such list shall also be published in the Federal Register on an annual
basis for the first 2 years after the applicable date of restoration.''
Subsec. (h)(2), (3). Pub. L. 105-80, Sec. 2(3), (4), amended pars.
(2) and (3) generally. Prior to amendment, pars. (2) and (3) read as
follows:
``(2) The `date of restoration' of a restored copyright is the later
of--
``(A) the date on which the Agreement on Trade-Related Aspects
of Intellectual Property referred to in section 101(d)(15) of the
Uruguay Round Agreements Act enters into force with respect to the
United States, if the source country of the restored work is a
nation adhering to the Berne Convention or a WTO member country on
such date; or
``(B) the date of adherence or proclamation, in the case of any
other source country of the restored work.
``(3) The term `eligible country' means a nation, other than the
United States, that is a WTO member country, adheres to the Berne
Convention, or is subject to a proclamation under subsection (g).''
1996--Subsec. (h)(3). Pub. L. 104-295 substituted ``subsection (g)''
for ``section 104A(g)''.
1994--Pub. L. 103-465 substituted ``Copyright in restored works''
for ``Copyright in certain motion pictures'' as section catchline and
amended text generally, substituting present provisions for provisions
restoring copyright in certain motion pictures and providing for
effective date of protection as well as use of previously owned copies.
Effective Date of 1998 Amendment
Subsec. (h)(1)(A), (B), (E), (3)(A), (B), (E) of this section and
amendment by section 102(c)(4), (5) of Pub. L. 105-304 effective Oct.
28, 1998, except as otherwise provided, subsec. (h)(1)(C), (3)(C) of
this section effective Mar. 6, 2002, and subsec. (h)(1)(D), (3)(D) of
this section and amendment by section 102(c)(3) of Pub. L. 105-304
effective May 20, 2002, see section 105(a), (b)(1)(C), (D), (2)(D)-(F)
of Pub. L. 105-304, set out as a note under section 101 of this title.
Effective Date
Section effective on the date the North American Free Trade
Agreement enters into force with respect to the United States [Jan. 1,
1994], see section 335(a) of Pub. L. 103-182, set out in an Effective
Date of 1993 Amendment note under section 1052 of Title 15, Commerce and
Trade.
Uruguay Round Agreements: Entry Into Force
The Uruguay Round Agreements, including the World Trade Organization
Agreement and agreements annexed to that Agreement, as referred to in
section 3511(d) of Title 19, Customs Duties, entered into force with
respect to the United States on Jan. 1, 1995. See note set out under
section 3511 of Title 19.
Section Referred to in Other Sections
This section is referred to in section 109 of this title.
