INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - USA

Copyright Laws and Regulations

Laws: Title 17, United States Code

Regulations: Title 37, Chapters I (Subchapter C)
and II, Code of Federal Regulations

17 U.S.C. � 102 Subject matter of copyright: In general

1. Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

   1. literary works;

   2. musical works, including any accompanying words;

   3. dramatic works, including any accompanying music;

   4. pantomimes and choreographic works;

   5. pictorial, graphic, and sculptural works;

   6. motion pictures and other audiovisual works;

   7. sound recordings; and

   8. architectural works.

2. In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

(Oct. 19, 1976, Pub. L. 94-553, Title I, � 101, 90 Stat. 2544; Dec. 1, 1990, Pub. L. 101-650, Title VII, � 703, 104 Stat. 5133.)

17 U.S.C. � 103 Subject matter of copyright: Compilations and derivative works

1. The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

2. The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

(Oct. 19, 1976, Pub. L. 94-553, Title I, � 101, 90 Stat. 2545.)

17 U.S.C. � 104 Subject matter of copyright: National origin

1. Unpublished works. The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author.

2. Published works. The works specified by sections 102 and 103, when published, are subject to protection under this title if--

   1. on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a foreign nation that is a party to a copyright treaty to which the United States is also a party, or is a stateless person, wherever that person may be domiciled; or

   2. the work is first published in the United States or in a foreign nation that, on the date of first publication, is a party to the Universal Copyright Convention; or

   3. the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or

   4. the work is a Berne Convention work; or

   5. the work comes within the scope of a Presidential proclamation. Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States or to works that are first published in the United States, copyright protection on substantially the same basis as that on which the foreign nation extends protection to works of its own nationals and domiciliaries and works first published in that nation, the President may by proclamation extend protection under this title to works 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 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 a proclamation.

3. Effect of Berne Convention. No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto.

(Oct. 19, 1976, Pub. L. 94-553, Title I, � 101, 90 Stat. 2545; Oct. 31, 1988, Pub. L. 100-568, � 4(a)(2), (3), 102 Stat. 2855.)

17 U.S.C. � 104A Copyright in restored works

1. Automatic protection and term.

   1. Term.

      1. Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration.

      2. 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.

2. 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.

3. 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.

4. 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:

      1.  

      1. 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

      2.  

      1. 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;

      2. 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

      3. 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.

      2.  

      1. 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

      2.  

      1. the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received;

      2. 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

      3. 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.

      1. In the case of a derivative work that is based upon a restored work and is created--

         1. 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

         2. 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.

      2. 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.

5. Notices of intent to enforce a restored copyright.

   1. Notices of intent filed with the copyright office.

      1.  

      1. 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.

      2. 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.

      3. 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).

      2.  

      1. 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.

      2. 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.

      3. 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.

      4.  

      1. 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.

      2. 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.

      1. 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.

      2. 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.

6. 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.

7. 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.

8. 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--

      1. a nation adhering to the Berne Convention or a WTO member country; or

      2. subject to a Presidential proclamation under subsection (g).

   2. The "date of restoration" of a restored copyright is--

      1. 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

      2. 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--

      1. becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act;

      2. on such date of enactment is, or after such date of enactment becomes, a member of the Berne Convention; or

      3. 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.

   4. The term "reliance party" means any person who--

      1. 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;

      2. before the source country of a particular work becomes an eligible country, makes or acquires one or more copies or phonorecords of that work; or

      3. 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--

      1. is protected under subsection (a);

      2. is not in the public domain in its source country through expiration of term of protection;

      3. is in the public domain in the United States due to--

         1. 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;

         2. lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or

         3. lack of national eligibility; and

      4. 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.

   7. The term "rightholder" means the person--

      1. who, with respect to a sound recording, first fixes a sound recording with authorization, or

      2. 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—

      1. a nation other than the United States;

      2. in the case of an unpublished work--

         1. the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than one author or rightholder, the majority of foreign authors or rightholders are nationals or domiciliaries of eligible countries; or

         2. 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

      3. in the case of a published work--

         1. the eligible country in which the work is first published, or

         2. 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.

   9. 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.

(Dec. 8, 1993, Pub. L. 103-182, Title III, Subtitle C, � 334(a), 107 Stat. 2115.)

(As amended Dec. 8, 1994, Pub. L. 103-465, Title V, Subtitle A, � 514(a), 108 Stat. 4976; Oct. 11, 1996, Pub. L. 104-295, � 20(e)(2), 110 Stat. 3529; Nov. 13, 1997, Pub. L. 105-80, � 2, 111 Stat. 1530.)

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

(Oct. 19, 1976, Pub. L. 94-553, Title I, � 101, 90 Stat. 2546.)

17 U.S.C. � 106 Exclusive rights in copyrighted works

Subject to sections 107 through 120, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following:

1. to reproduce the copyrighted work in copies or phonorecords;

2. to prepare derivative works based upon the copyrighted work;

3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

(Oct. 19, 1976, Pub. L. 94-553, Title I, � 101, 90 Stat. 2546; July 3, 1990, Pub. L. 101-318, � 3(d), 104 Stat. 288; Dec. 1, 1990, Pub. L. 101-650, Title VII, � 704(b)(2), 104 Stat. 5134.)

(As amended Nov. 1, 1995, Pub. L. 104-39, � 2, 109 Stat. 336.)

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