Procedures for Copyright Restoration of Certain Motion Pictures and Their Contents in Accordance With the North American Free Trade Agreement

Federal RegisterMar 16, 1994

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LIBRARY OF CONGRESS

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

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

agent.

These interim regulations set out the procedures that potential

for their works restored in the United States. To restore copyright,

potential copyright owners must file Statements of Intent with the

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

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

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 fixed1 in Mexico or Canada and entered

the public domain in the United States because of first

publication2 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

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

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

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:

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

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

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.

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

(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

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

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