2007.1 What Is a Restored Work?
Previously, U.S. federal copyright law did not protect original works of authorship immediately upon their fixation in a tangible medium of expression. Instead, authors needed to take certain steps, such as publishing the work with a specific copyright notice and renewing the copyrights at particular times in order to obtain federal copyright protection. These types of requirements are called “formalities” and they applied to both U.S. and foreign works.
In 1978, the current Copyright Act went into effect, which eliminated some of these requirements. In 1989, the United States became a member of the Berne Convention, and enacted the Uruguay Round Agreements Act, Pub. L. No. 103– “465, 108 Stat. 4809 (codified in scattered sections of the U.S.C.) (1994) (“URAA”), which implemented the United States’ obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights. This further relaxed some of the Copyright Act’s more restrictive provisions.
Specifically, the URAA “restored” the copyright in foreign works that entered the public domain because of a failure to comply with certain formalities, and thus provided retroactive copyright protection for many works that were ineligible for protection under the prior law. In 2012, the U.S. Supreme Court held that the URAA does not violate Article I, Section 8 or the First Amendment of the Constitution. Golan v. Holder, 565 U.S. 302 (2012).
Section 104A (G) (6) of the Copyright Act specifies the requirements that must be met in order to qualify as a “restored work.”
• Not in the public domain in the source country: The work must not be in the public domain in its source country through the expiration of the term of protection. 17 U.S.C. § 104A (G) (6) (B). As discussed in Chapter 100, Section 102.2 (A), the term of protection is the length of time during which a work is protected by copyright law. As discussed in Chapter 300, Section 313.6 (D), the term “public domain” means that the work is not protected by copyright law. Thus, a restored work must be copyright-protected and still within its term of protection in the foreign country.
• Fell into the public domain in the United States: The work must be in the public domain in the United States (I) because the work did not comply with certain formalities (such as failing to place a proper notice on the work, failing to renew the copyright in a timely manner, or failing to comply with manufacturing requirements under prior law); (ii) because the work is a sound recording that was fixed before February 15, 1972, and as such, was not protected by U.S. federal copyright law; or (iii) because of a lack of national eligibility (as discussed above generally). 17 U.S.C. § 104A (G) (6) (C).
• Eligibility at time of creation or publication: At least one author or rightholder of the work must have been (I) a national or domiciliary of an eligible country at the time of the work’s creation, and (ii) if the work is published, it must have been first published in an eligible country and not published in the United States within thirty days after the date of first publication. 17 U.S.C. § 104A (G) (6) (D).
• Sound recordings: If the source country for the work is an eligible country solely by virtue of its adherence to the WPPT, the restored work must be a sound recording. 17 U.S.C. § 104A (G) (6) (E).
January 1, 1996 is the effective date of restoration of copyright for foreign works from countries that were members of the WTO or the Berne Convention on that date. Most restored works were restored on January 1, 1996, because many countries became members of the WTO or Berne Convention prior to that date. In all other cases, the effective date of restoration is the date a newly eligible country accedes to the WTO or the Berne Convention or the date of a Presidential proclamation restoring U.S. copyright protection to works of that country.
NOTE: Restored works are subject to a variety of other legal requirements regarding enforcement and remedies, which are not covered in this Compendium. For more information on restored works, see Copyright Restoration Under the URAA (Circular 38b).