under U.S. copyright law, no matter what
country they were created in.
EXAMPLE 1: Assume that Omar’s book in
the example above was first published in the
EXAMPLE: Maria, an Argentinian citizen
United States. Even though Omar is an Iraqi
and resident, creates an unpublished opera.
citizen and resident, his book is entitled to
The work is entitled to full U.S. copyright
ful U.S. copyright protection.
protection.
EXAMPLE 2: Assume instead that Omar’s
book was first published in France. It is
Foreign Works Not Entitled to
entitled to full U.S. copyright protection
U.S. Copyright Protection
because it was first published in a treaty
country.
A handful of countries have not signed
any of the international copyright treaties.
EXAMPLE 3: Jaleh, an Iranian citizen, has
These are:
created an unpublished screenplay. The
Eritrea
Iraq
screenplay is entitled to full U.S. copyright
Ethiopia
San Marino
protection: It’s protected for the rest of her
Iran
life plus 70 years. This is so, even though the
A work published in any of these
United States has no copyright relations
countries by a citizen or resident of any
with Iran.
of these countries is not entitled to U.S.
For copyright protection purposes, a work
copyright protection—that is, it is in the
is first published in the United States or a
public domain.
treaty country if it was published in such a
EXAMPLE: Omar, an Iraqi citizen and
country either before or within 30 days after
resident, publishes a book in Iraq. Since Iraq
it was published in a nontreaty country.
is one of the few countries that has signed
EXAMPLE: Achmed, a citizen and resident
none of the copyright treaties, Omar’s work
of Afghanistan, published in Afghanistan
is not protected by U.S. copyright.
a book on mountain climbing. Two weeks
330 | THE COPYRIGHT HANDBOOK
later, the book was also published in India.
Restoration of Copyrights
For copyright purposes, Achmed’s book
Under GATT Agreement
was first published in a treaty country
(India) and is entitled to full U.S. copyright
The GATT TRIPS Agreement required that
protection.
U.S. copyright law be rewritten to restore
U.S. copyright protection for certain foreign
The copyright status of the following
works that:
countries is unclear—in other words, no
• were published in the United States, and
one is sure what protection, if any, works
• entered the public domain in the
published in these countries are entitled to
United States because certain copyright
in the United States:
formalities were not complied with.
Kiribati
Republic of South Sudan
The U.S. copyright law has in fact been
Nauru
Somalia
rewritten to implement this provision,
Palau
Tuvalu
and works meeting the law’s requirements
have had their copyright restored. In other
Compliance With U.S.
words, these works are no longer in the
Copyright Formalities
public domain.
The intent of the law is to put the United
It is not necessary for a non-U.S. citizen to
States in compliance with the Berne Con-
place a valid copyright notice on published
vention, which never required formalities
work or register it with the U.S. Copyright
like a copyright notice or renewal to obtain
Office to obtain copyright protection in
copyright protection. Foreign authors who
the United States. Indeed, unlike the case
failed to comply with these unique U.S.
with U.S. citizens, a non-U.S. citizen need
copyright formalities are now forgiven
not register a work first published abroad
and granted a full term of U.S. copyright
before filing suit in the United States
protection. Unfortunately, U.S. citizens don’t
for copyright infringement. However, as
receive this same treatment; copyright in their
discussed in Chapter 2, “Copyright Notice,” public domain works has not been restored.
and Chapter 3, “Copyright Registration,”
The United States Supreme Court has upheld
extremely important advantages are gained the constitutionality of these restoration
under U.S. copyright law if a published
provisions, holding that it was permissible
work contains a valid copyright notice and a for Congress to al ow some works that fell in published or unpublished work is registered the public domain to be “born again” with
with the Copyright Office. Therefore, notice copyright protection. ( Golan v. Holder, 565
and registration are strongly advised for all
U.S. 1 (2012).)
foreign authors.
CHAPTER 12 | INTERNATIONAL COPYRIGHT PROTECTION | 331
This is a major change in U.S. copyright
notice. It’s likely most works that were
law that affects not only the authors and
deemed valuable at the time did have a
copyright owners of the affected works, but notice. However, notices were often left off also U.S. citizens who thought the works
works that were viewed as not very valuable
were in the public domain and used them
or of only temporary interest—postcards,
without seeking permission.
for example.
It’s likely that by far the largest category
Which works lost U.S. copyright protection
of restored foreign works are those
Works created by citizens or residents of
published before 1964 for which no renewal
countries other than the United States
notice was filed during the 28th year
entered the public domain in the United
after publication. The Copyright Office
States if any of the following were true:
estimates that only about 15% of pre-1964
• They were published in a foreign
published works were ever renewed. The
country between January 1, 1978
15% that were renewed probably include a
and March 1, 1989 without a valid
large proportion of those pre-1964 works
copyright notice or were published
with continuing economic value. However,
in the United States any time before
mistakes were frequently made and many
March 1, 1989 without a valid notice.
noteworthy works were never renewed.
• They were published in the United States
Copyright is also restored in works
or a foreign country before January
that received no copyright protection in
1, 1964, but the copyright was never
the United States because they were first
published in countries with which the
with the U.S. Copyright Office during
United States had no copyright relations
the 28th year after publication. (See
at the time of publication. You may be
Chapter 9, “Copyright Duration.”)
surprised to know that as recently as
• They were published in the United
1973, the United States had no copyright
States before January 1, 1978, but were relations with the Soviet Union. Works
not registered with the U.S. Copyright published before 1973 in the Soviet Union
Office within six months after the
were in the public domain in the United
Register of Copyrights notified the
States. Copyright in such works has now
copyright owner that registration and
been restored provided they are still under
deposit must be made.
protection in Russia or the other nations
It’s impossible to say how many works
that made up the now-defunct Soviet
were ever published in the United States
Union. Probably most significant among
before 1989 without a valid copyright
these works are those by Soviet composers,
such as Prokofiev and Shostakovitch.
332 | THE COPYRIGHT HANDBOOK
Which works have had copyright restored
the public domain on January 1, 1969.
Ken died in 1942, so the book entered the
U.S. copyright is restored only in those works:
public domain in Canada on January 1, 1993
• that had at least one author who was
(copyrights last for the life of the author plus
a citizen or resident of a country other
50 years in Canada). Because the book was
than the United States that is a member
in the public domain in Canada on January
of the Berne Copyright Convention or
1, 1996, it didn’t qualify for copyright
World Trade Organization (a GATT
restoration. It remains in the public domain
member), has signed the WIPO
in the United States.
Copyright Treaty, or has a copyright
treaty with the United States—which
You need to know the copyright term
includes almost all the countries of the of the foreign author’s country and when
world
the author died to know if the work was
• that, if published, was first published
in the public domain in its home country
in one of the countries described above on January 1, 1996, the date the automatic
(not necessarily the same country as
copyright restoration for foreign works
the author’s), but not published in the
took effect.
United States within 30 days following
the foreign publication, and
Copyright restored automatical y
• whose copyright protection has not
Copyright restoration for all foreign works
expired under the copyright laws of the meeting the above requirements occurred
foreign country.
automatical y on the date the copyright parts
The last requirement above is one that a
of the GATT Agreement became effective:
number of foreign works may not satisfy.
January 1, 1996. These works receive the
In almost all foreign countries, copyrights
same term of copyright protection in the
for most types of works last for the life of
United States they would have had had they
the author plus 50 years, or the life of the
never entered the public domain.
author plus 70 years (Western Europe uses
the life-plus-70-year term). If the author of
EXAMPLE: In 1950, Thames Press, a British
publisher, published in Great Britain a
the foreign work died long enough ago, the
novel called Sticky Wicket, by the English
work may not have qualified for copyright
writer John Jones. Thames failed to file a
restoration in the United States.
renewal registration for the book in 1978,
EXAMPLE: Ken published a book with a
and as a result it entered the public domain
copyright notice in Canada in 1940. The
in the United States on January 1, 1979.
book was never renewed and so entered
However, the U.S. copyright in the book
CHAPTER 12 | INTERNATIONAL COPYRIGHT PROTECTION | 333
was automatical y restored by the GATT
Copyright infringement of restored works
Agreement, effective January 1, 1996. This
No one can use a restored work for the first
is because the work was written by a British
time after GATT’s effective date without
subject and was first published in Great
Britain (a Berne member), and the British
obtaining the copyright owner’s permission,
copyright on the book had not expired as
unless the use is a fair use. (See Chapter 10.)
of 1995 (British copyrights last for the life of
“Use” means exercising any of the copyright
the author plus 70 years). The book receives
owner’s exclusive rights to copy, initial y
the same term of copyright protection in
distribute, create derivative works from,
the United States it would have had had a
or publicly display or perform the work.
renewal been timely filed—95 years from
The owner of a restored work can bring a
the date of publication. The novel will be
copyright infringement action against anyone
protected by copyright in the United States
who unlawful y uses the work after GATT’s
until December 31, 2045.
effective date, just as for any other work.
Things are more complicated, however,
Who owns restored works
if businesses or people used a restored
work without permission before GATT’s
The U.S. copyright in a restored work is
effective date of January 1, 1996 because
initially owned by the author as defined
they thought it was in the public domain
by the law of the country of origin, not
and continued to use the work in the
U.S. law. If the author died before GATT’s same way after that date. Such people
effective date, ownership is determined
are called reliance parties. They can’t be
under the inheritance laws of the author’s
sued for copyright infringement until 12
country. Disputes concerning initial
months after the copyright owner of the
ownership of restored foreign copyrights
restored work files a Notice of Intent to
are to be deter mined by U.S. federal courts Enforce Copyright with the reliance party
applying the law of the country of origin.
personally or has filed an NIE with the
If the author at any time assigned,
Copyright Office before 1998.
licensed, or otherwise transferred all or part
During this 12-month period, the
of his or her copyright rights, the transfer is
reliance party may sell off previously
supposed to be given effect according to the
manufactured stock, publicly perform or
terms of the agreement. Disputes concerning display the work, or authorize others to do
copyright transfers must be resolved in U.S.
so. A reliance party cannot make new copies
state courts applying U.S. law.
of the restored work during this period or
334 | THE COPYRIGHT HANDBOOK
use it differently than it was used before
What to Do If You’re
GATT’s effective date unless permission is
a Reliance Party
obtained from the work’s copyright owner.
After the 12 months are up, the reliance
If you’re a reliance party—that is, you used
party must stop using the restored work
a restored work without permission before
unless a licensing agreement is reached with
1995 because you thought it was in the
the copyright owner for continued use of
public domain—here’s what you should do:
the work.
• First, check the Copyright Office’s
If a licensing agreement is not reached
records to see if the owner of the
and the reliance party continues to use
work you used has filed an NIE with
the restored work, the copyright owner
the Copyright Office. The Copyright
can sue for copyright infringement for
Office has posted a list of all filed NIEs
any unauthorized uses occurring after the
on its website at www.copyright.gov.
12-month period expires. But a copyright
You can also search for them by using
the Copyright Office’s online database,
owner cannot sue a reliance party for any
which is accessed from the same website.
unauthorized uses that occurred before the
• If an NIE has been filed, stop using the
12-month notice period ended, provided the
work. You’ll be liable for any unauthor-
party used the work the same way before
ized uses of the work that occurred 12
GATT’s effective date.
months after the NIE was filed. You may
wish to seek out the copyright owners
Sending Notice of Intent to Enforce
of the restored work and obtain their
Copyright to reliance parties
permis sion to use it again.
As discussed above, the owner of a restored
• If no NIE has been filed with the Copy-
work has no rights against a reliance
right Office, you may elect to continue
party unless a Notice of Intent to Enforce
to use the restored work. You won’t be
Copyright (NIE) is sent. Before 1998, the
liable for such use until one year after
The Copyright Handbook Page 58