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U.S. Code as of:
01/19/04
Section 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
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(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
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(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.
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