[Federal Register: March 16, 1994]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 93-13A]
Procedures for Copyright Restoration of Certain Motion Pictures
and Their Contents in Accordance With the North American Free Trade
Agreement
AGENCY: Copyright Office, Library of Congress.
ACTION: Interim regulation with request for comments.
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SUMMARY: The Copyright Office is issuing interim regulations to
establish procedures governing the filing of Statements of Intent for
the restoration of copyright protection in the United States for
certain motion pictures and their contents in accordance with the North
American Free Trade Agreement (NAFTA) and the statute implementing it.
The NAFTA Implementation Act authorizes the Copyright Office to
establish procedures whereby potential copyright owners of eligible
works who file a complete and timely Statement of Intent with the
Copyright Office on or before December 31, 1994, will have copyright
protection restored effective January 1, 1995.
DATES: These interim regulations are effective March 16, 1994. Comments
should be in writing and received on or before May 16, 1994.
ADDRESSES: If sent by mail, fifteen copies of written comments should
be addressed to: Copyright GC/I&R, P.O. Box 70400, Southwest Station,
Washington, DC 20024. If hand delivered, fifteen copies should be
brought to: Office of the Copyright General Counsel, James Madison
Memorial Building, room 407, First and Independence Avenue SE.,
Washington, DC 20024. In order to ensure prompt receipt of these time
sensitive documents, the Office recommends that the comments be
delivered by private messenger service.
FOR FURTHER INFORMATION CONTACT: Eric Schwartz, Policy Planning
Advisor, Copyright Office, Library of Congress, Washington, DC 20540.
Telephone: (202) 707-8350. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION: On January 10, 1994, the Copyright Office
notified the public of the provisions in NAFTA with regard to the
restoration of copyright protection for certain works, 59 FR 1408
(1994). To be eligible for copyright restoration, a motion picture or
any work included in a motion picture either:
1. Must have been first fixed in Mexico or Canada and entered the
public domain in the United States because of first publication
anywhere on or after January 1, 1978, and before March 1, 1989, without
the required copyright notice;
2. Or, regardless of where it was fixed, must have entered the
public domain in the United States because of first publication in
Mexico or Canada on or after January 1, 1978, and before March 1, 1989,
without the required copyright notice.
Further, for copyright to be restored in an eligible work, a
complete and timely Statement of Intent must be filed with the
Copyright Office by the potential copyright owner or an authorized
agent.
These interim regulations set out the procedures that potential
copyright owners must follow if they wish to have copyright protection
for their works restored in the United States. To restore copyright,
potential copyright owners must file Statements of Intent with the
Copyright Office on or before December 31, 1994, and these Statements
must contain the information set out in these regulations. The
regulations also detail the procedures the Copyright Office will use to
process Statements of Intent and create a record for the public.
I. Background
The North American Free Trade Agreement entered into force on
January 1, 1994. The NAFTA Agreement and the NAFTA Implementation Act
(Pub. L. 103-182) provide for the restoration of copyright for certain
works that are currently in the public domain in the United States. New
section 104 sets out the conditions for restoring protection:
Classes of works eligible. Two types of works are eligible for
copyright restoration: (1) Motion pictures; and (2) works included in
motion pictures (such as an underlying work--a novel or play on which a
motion picture was based--or the original screenplay or original
musical score of a motion picture).
Dates of publication and public domain status. To be eligible for
restoration, the motion picture, or the work included in a motion
picture, must meet two criteria: (1) The work must have been first
published on or after January 1, 1978, and before March 1, 1989; and
(2) the work must have fallen into the public domain in the United
States because, at the time of its first publication, it failed to meet
the requirements of the U.S. copyright law for publication with notice
of copyright (17 U.S.C. 401, 402, 403, 405) as they existed at that
time.
Place of first fixation or publication. Assuming they meet the
other criteria, the following two kinds of works are eligible for
copyright restoration: (1) Published works that were first fixed in
Canada or Mexico, regardless of where they were first published; and
(2) works first published in Mexico or Canada, regardless of where they
were first fixed. A motion picture, or a work included in a motion
picture, meeting these requirements is entitled to receive copyright
protection under title 17 for the remainder of the term of copyright
protection to which it would have been entitled in the United States
had it been published with the required notice. 17 U.S.C.
104A(a)(1993).
Potential copyright owners of qualifying works must file a
Statement of Intent with the Copyright Office between January 1, 1994
(the date on which the Agreement entered into force), and December 31,
1994, to notify the public of their intent to restore copyright
protection for these works in the United States. After January 1, 1995,
the Copyright Office will publish in the Federal Register a list of the
works which are determined to be properly qualified for protection and
for which complete Statements of Intent have been filed. The
restoration of copyright protection for eligible works will be
effective on January 1, 1995.
The new section 17 U.S.C. 104A(c) created by the NAFTA
Implementation Act gives a one year exemption to U.S. nationals or
domiciliaries who made or acquired copies of a motion picture or its
contents before December 8, 1993, the date of enactment of the
implementing act. These individuals or entities may continue to sell,
distribute, or perform publicly such works without liability for a
period of one year following the Copyright Office's publication in the
Federal Register of the list of works for which Statements of Intent
have been received.
The copyright restoration provisions apply to a ``motion picture''
or any work included in a motion picture. Section 101 of title 17
defines motion pictures to include audiovisual works consisting of a
series of related images which, when shown in succession, impart an
impression of motion, together with accompanying sounds, if any. Thus,
for example, the restoration provisions apply to feature films, short
films, documentaries, silent films, television films, television
series, and television programs, as well as works contained in these
``motion pictures.''
To be eligible for copyright restoration, a motion picture or any
work included in a motion picture either:
1. Must have been first fixed<SUP>1 in Mexico or Canada and entered
the public domain in the United States because of first
publication<SUP>2 anywhere on or after January 1, 1978, and before
March 1, 1989, without the required copyright notice;
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\1\See 17 U.S.C. 101. For example, a ``fixed'' motion picture
would be completed and embodied in a copy, such as on film stock or
videotape. Also see the definitions provided in these interim
regulations.
\2\See 17 U.S.C. 101. The place of first publication would be
the place where copies were first sold, leased, loaned or offered
for sale, by for example, the distribution of videotape copies or
film prints. Also, see the definitions provided in these interim
regulations.
Also, see Article 3(4) of the Berne Convention for the
Protection of Literary and Artistic Works which permits simultaneous
publication, that is, within 30 days of its first publication if
published in two or more countries. For example, if a motion picture
was first published (between January 1, 1978 and March 1, 1989)
within 30 days in two countries, and one of these countries is
Mexico or Canada, it would be eligible for the NAFTA copyright
restoration.
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2. Or, regardless of where it was fixed, must have entered the
public domain in the United States because of first publication in
Mexico or Canada on or after January 1, 1978, and before March 1, 1989,
without the required copyright notice.
Further, for copyright to be restored in an eligible work, a
complete and timely Statement of Intent must be filed with the
Copyright Office by the potential copyright owner or an authorized
agent.
Although the Copyright Office has authority to charge a fee for the
processing of NAFTA Statements of Intent under 17 U.S.C. 708, it has
decided not to do so at this time. However, it reserves the right to
charge a fee in the future if the Office's duties are broadened under
the NAFTA or a similar agreement.
The filing of an effective Statement of Intent will not give any of
the legal benefits or presumptions that a voluntary copyright
registration now provides under U.S. copyright law. The Statement of
Intent is submitted only for the purposes of the NAFTA copyright
restoration provisions. Any work for which copyright is restored may be
registered on and after January 1, 1995, in accordance with title 17,
upon the submission of the proper copyright application, filing fee,
and an appropriate deposit of the work. The Copyright Office will not
accept applications for copyright registration for these works before
January 1, 1995; only Statements of Intent may be filed before then.
After January 1, 1995, the Copyright Office encourages potential
copyright owners to make a voluntary copyright registration to obtain
the legal and commercial advantages made available by registration.
These include certain evidentiary benefits; availability of statutory
damages; and the creation of a complete registration record in the
Copyright Office's online database.
II. Explanation of Interim Regulations
Procedures for Filing an Effective Statement of Intent
Potential copyright owners or their agents must file Statements of
Intent with the Copyright Office on or before December 31, 1994, in
order for a Statement to be effective. No fee is required. The
Statement of Intent must be in English and should be typed or clearly
printed by hand on 8\1/2\-inch by 11-inch white paper. To be complete,
a Statement of Intent must contain all of the information required in
items 1 through 6 below, including the entire ``certification
statement'' and the signature of the potential copyright owner or
authorized agent.
A complete Statement should clearly indicate at the top of the
first page that the potential copyright owner is submitting: A
Statement of Intent to restore copyright protection in the United
States in accordance with the North American Free Trade Agreement
(NAFTA). All statements must be mailed to the Copyright Office at:
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC
20024.
All of the information required in items 1 through 6 below must be
contained in a Statement of Intent. Otherwise the Copyright Office will
correspond with the party submitting the Statement to correct
omissions. Should that party continue to fail to include any of the
required items (1 through 6), copyright restoration cannot be effected
for that particular work. In addition to the required information, the
Office encourages the potential copyright owner to provide other
``optional'' information that should be useful in providing information
to the public about any work for which copyright is restored.
The required and optional information for a Statement of Intent is:
(1) Title (Required Information)
The title of the work or works for which copyright restoration is
sought. If multiple works are listed in a single Statement of Intent,
each individual work must be clearly and separately identified in items
1 through 6 of the Statement. For series and episodes, these titles
must be clearly identified by a title or number.
Explanation of item #1: Only motion pictures and their contents (as
defined in 17 U.S.C. 104A and 101) are eligible for copyright
restoration. Potential copyright owners can submit the titles of any
number of works for which they are seeking restoration on a single
Statement of Intent. Assuming that the exploitation of the contents in
a motion picture was legally authorized at the time the motion picture
was made, submission of the title of the motion picture will suffice
for the restoration of copyright protection for the works included in
it.
Optional information for item #1 includes alternative titles (for
example, the American release title of a motion picture if different
from the foreign title); the original producer and/or director of the
motion picture; and the format or physical description of the work as
first published (for example, running time, number of reels, and
whether the work is on film, videotape, videodisc, or another medium).
This descriptive material will help identify similarly titled films or
rereleases.
(2) Nation of First Fixation (Required Information)
Explanation of item #2: To be eligible for copyright restoration a
work must have been first fixed in Mexico or Canada, or, if first fixed
in any other nation, it must have been first published in Mexico or
Canada. For example, a work may be eligible for restoration if it was
first fixed before 1978 in the United States but later published in
Mexico or Canada between January 1, 1978, and March 1, 1989.
Optional information for item #2 would include the year date of
first fixation.
(3) Nation of First Publication (Required Information)
Explanation of item #3: To be eligible for copyright restoration
the work must have been first published in Mexico or Canada if it was
first fixed in a nation other than Mexico or Canada. If a work remains
unpublished in 1994, the NAFTA copyright restoration provisions are not
applicable because the work is already protected under the copyright
law of the United States regardless of the nationality or domicile of
its author. The duration of unpublished works is governed by 17 U.S.C.
302 and 303.
(4) Date of First Publication (Required Information)
Explanation of item #4: To be eligible for copyright restoration a
work must have been first published on or after January 1, 1978, and
before March 1, 1989, and must have entered the public domain in the
United States for failure to comply with the copyright notice
requirements of the U.S. Copyright Code. For example, the date of first
publication would be the date of a film's release, or the date of its
first offering for rental or sale.
(5) Name and Address (Required Information)
The name and mailing address of the potential copyright owner of
work, and a telephone and telefax number, if available.
Explanation of item #5: The name and mailing address (the telephone
and telefax numbers, if available) of the potential copyright owner
will be used to create a readily available public record at the Library
of Congress. This information will serve to identify the copyright
owner of works for which copyright has been restored, to provide notice
to the public that these works will have copyright protection for the
remainder of their term, and to facilitate licensing and other uses of
these works by the general public.
Optional information for item #5 would include the name of the
original copyright owner of the work, if it is different from the
potential copyright owner; and for works contained in motion pictures,
the potential owner or owners of those works, if different from the
potential copyright owner submitting a Statement of Intent. Separate
Statements of Intent may be submitted by the potential copyright
owner(s) of the underlying works, if different from the owner of the
motion picture.
(6) Certification Statement and Signature (Required Information)
The following dated certification statement must be included in its
entirety along with the signature of the potential copyright owner or
authorized agent:
I hereby certify that each of the above titled works was first
fixed or first published in Mexico or Canada and entered the public
domain in the United States of America because it was first
published on or after January 1, 1978, and before March 1, 1989,
without the notice required by the copyright law of the United
States of America then in effect. I certify that the information
given herein is true and correct to the best of my knowledge, and
understand that any knowing or willful falsification of material
facts may result in criminal liability under 18 U.S.C. 1001.
Explanation of item #6: The entire certification statement must be
reproduced on each Statement of Intent to attest that the person
signing the statement understands the copyright restoration provisions
and the consequences of false statements of material facts. A complete
Statement of Intent must be signed and dated by the potential copyright
owner or an authorized agent.
III. Sample Statement of Intent
As an Appendix, the Copyright Office provides a sample Statement of
Intent which may be used by potential copyright owners or their
authorized agents. This Appendix will not appear in the Code of Federal
Regulations. The sample Statement includes both the required
information that must be provided for the Statement of Intent to be
effective and the additional optional information which is not
required. If provided, the optional information, clearly identified in
this sample, will greatly enhance the Copyright Office records. The
Office encourages potential copyright owners to use this suggested
format for their submissions to ensure that all necessary information
is provided and to avoid correspondence.
IV. Copyright Office Procedures for Handling Statements of Intent
A timely Statement of Intent will be reviewed by the Copyright
Office for the required information listed in items 1 through 6. If the
Statement does not give the required information, the Copyright Office
will ask the potential copyright owner or authorized agent to submit
the missing information. Complete and timely Statements of Intent will
be entered into the Copyright Office's records and will be readily
accessible to the public. The Copyright Office will publish a list of
all the titles of eligible works for which effective Statements of
Intent have been made in the Federal Register as soon as possible after
January 1, 1995, and will make it available to the public after that
date. Statements of Intent submitted after December 31, 1994, will not
be accepted for inclusion in the Copyright Office's database or for the
Federal Register notice in 1995. Copyright restoration is automatic and
requires no further action by the Copyright Office.
Appendix
Statement of Intent To Restore Copyright Protection in the United
States in Accordance With the North American Free Trade Agreement
(NAFTA)
1. Title of work(s):-------------------------------------------------
(For multiple works complete items 1 through 6 for each separate
work.)
1a. Include series and episode title(s)/number(s), if any------------
1b. If this Statement does not cover the entire motion picture,
specify the underlying work covered, e.g., screenplay, music, etc.
1c. (Optional) Alternative titles (for example, U.S. release title,
if different from foreign title)---------------------------------------
1d. (Optional) Original producer and/or director---------------------
1e. (Optional) Format or physical description of work as first
published (running time, reels, etc.)______----------------------------
Film______ Videotape______ Videodisc______ Other (describe)
2. Nation of first fixation--Mexico ( ) Canada ( ) Other
nation (specify):______
2a. (Optional) Year of first fixation:______-------------------------
3. Nation of first publication--Mexico ( ) Canada ( ) Other
nation (specify):______
4. Date of first publication:----------------------------------------
(month/day/year)
5. Name and mailing address of potential copyright owner of
work:
Name:----------------------------------------------------------------
Address:-------------------------------------------------------------
(Street or Post Office Box, City/State, Country)
Telephone______ Telefax______
6. Certification and Signature: I hereby certify that each of
the above titled works was first fixed or first published in Mexico
or Canada and entered the public domain in the United States of
America because it was first published on or after January 1, 1978,
and before March 1, 1989, without the notice required by the
copyright law of the United States of America then in effect. I
certify that the information given herein is true and correct to the
best of my knowledge, and understand that any knowing or willful
falsification of material facts may result in criminal liability
under 18 U.S.C. 1001.
Signature: __________ Date: __________
(Potential copyright owner or authorized agent)
List of Subjects in 37 CFR Part 201
Copyright, Restoration of copyright for certain works in accordance
with the North American Free Trade Agreement.
Interim Regulations
For the reasons set out in the Preamble, section 37 CFR chapter II
is amended in the manner set forth below.
PART 201--[AMENDED]
1. The authority citation for part 201 is revised to read as
follows:
Authority: Sec. 702, 90 Stat. 2541; 17 U.S.C. 702; Sec. 201.31
is also issued under Public Law 103-182, 107 Stat. 2115.
2. A new Sec. 201.31 is added to read as follows:
Sec. 201.31 Procedures for copyright restoration in the United States
for certain motion pictures and their contents in accordance with the
North American Free Trade Agreement.
(a) General. This section prescribes the procedures for submission
of Statements of Intent pertaining to the restoration of copyright
protection in the United States for certain motion pictures and works
embodied therein as required in 17 U.S.C. 104A(a). On or after January
3, 1995, the Copyright Office will publish in the Federal Register a
list of works for which potential copyright owners have filed a
complete and timely Statement of Intent with the Copyright Office.
(b) Definitions. For purposes of this section, the following
definitions apply:
(1) Effective filing. To be effective a Statement of Intent must be
complete and timely.
(2) Eligible work means any motion picture that was first fixed or
published in Mexico or Canada, and any work included in such motion
picture that was first fixed or published with this motion picture, if
the work entered the public domain in the United States because it was
first published on or after January 1, 1978, and before March 1, 1989,
without the notice required by 17 U.S.C. 401, 402, or 403, the absence
of which has not been excused by the operation of 17 U.S.C. 405, as
such sections were in effect during that period.
(3) Fixed means a work `fixed' in a tangible medium of expression
when its embodiment in a copy or phonorecord, by or under the authority
of the author, is sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a period of more
than transitory duration. A work consisting of sounds, images, or both,
that are being transmitted, is `fixed' for purposes of this title if a
fixation of the work is being made simultaneously with its
transmission. 17 U.S.C. 101
(4) Potential copyright owner means the person who would have owned
any of the exclusive rights comprised in a copyright in the United
States in a work eligible for copyright restoration under NAFTA, if the
work had not fallen into the public domain for failure to comply with
the statutory notice requirements in effect at the time of first
publication, or any successor in interest to such a person.
(5) Published means distribution of copies of a work to the public
by sale or other transfer of ownership, or by rental, lease, or
lending. The offering to distribute copies to a group of persons for
purposes of further distribution, public performance, or public
display, constitutes publication. A public performance or display of a
work does not of itself constitute publication.
(c) Forms. The Copyright Office does not provide Statement of
Intent forms for the use of potential copyright owners who want to
restore copyright protection in eligible works.
(d) Requirements for effective Statements of Intent. (1) The
document should be clearly designated as a ``Statement of Intent to
restore copyright protection in the United States in accordance with
the North American Free Trade Agreement''.
(2) Statements of Intent must include: (i) The title(s) of the
work(s) for which copyright restoration is sought; (ii) nation of first
fixation; (iii) nation of first publication; (iv) date of first
publication; (v) name and mailing address (and telephone and telefax,
if available) of the potential copyright owner of the work; (vi) the
following certification (in its entirety); signed and dated by the
potential copyright owner or authorized agent:
I hereby certify that each of the above titled works was first
fixed or first published in Mexico or Canada and entered the public
domain in the United States of America because it was first
published on or after January 1, 1978, and before March 1, 1989,
without the notice required by the copyright law of the United
States of America then in effect. I certify that the information
given herein is true and correct to the best of my knowledge, and
understand that any knowing or willful falsification of material
facts may result in criminal liability under 18 U.S.C. 1001.
(3) Statements of Intent must be received in the Copyright Office
on or before December 31, 1994.
(4) Statements of Intent must be in English and either typed or
legibly printed by hand, on 8 1/2 inch by 11 inch white paper.
(e) Fee. The Copyright Office is not requiring a fee for the
processing of Statements of Intent.
(f) Effective date of restoration of copyright protection. (1)
Potential copyright owners of eligible works who file a complete and
timely Statement of Intent with the Copyright Office will have
copyright protection restored in these works effective January 1, 1995.
(2) The new section 17 U.S.C. 104A(c) created by the NAFTA
Implementation Act gives a one year exemption to U.S. nationals or
domiciliaries who made or acquired copies of a motion picture or its
contents before December 8, 1993, the date of enactment of the
implementing act. These individuals or entities may continue to sell,
distribute, or perform publicly such works without liability for a
period of one year following the Copyright Office's publication in the
Federal Register of the list of the works determined to be properly
qualified for protection and for which complete and timely Statements
of Intent have been filed.
(g) Registration of works whose copyright has been restored. After
January 1, 1995, the Copyright Office encourages potential copyright
owners to make voluntary copyright registration in accordance with 17
U.S.C. 408 for works that have had copyright restored in accordance
with NAFTA.
Dated: March 8, 1994.
Barbara Ringer,
Acting Register of Copyrights.
James H. Billington,
The Librarian of Congress.
[FR Doc. 94-6122 Filed 3-15-94; 8:45 am]
BILLING CODE 1410-07-P