Copyright Restoration under the URAA

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U.S. Copyright Office Circulars › U.S. Copyright Office, Circular 38B

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Circular 38b

2 38b.0113

Under the URAA

Congress passed the Uruguay Round Agreements Act (URAA) in 1994 to

implement U.S. obligations under the Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO).

TRIPS incorporates by reference many obligations under the Berne Convention

for the Protection of Literary and Artistic Works.

The United States signed the Berne Convention in 1989, committing itself to

grant the same level of copyright protection to works from other Berne countries

that it provides to works of U.S. nationals.

The United States acceded to TRIPS in 1995 when it joined the WTO. TRIPS

independently mandates compliance with most Berne provisions and provides

additional obligations regarding enforcement that are subject to dispute resolu-

tion at the WTO.

Several provisions of the URAA amend U.S. copyright law.¹ This circular

focuses on amendments to section 104a.

The URAA amended section 104a of the copyright law to restore U.S. copy-

right to certain foreign works that were in the public domain in the United

States but protected by copyright in their countries of origin.

Restoration of Copyrights

Ownership of a restored copyright vests initially in the author or initial right-

holder, as determined by the law of the restored work’s source country or by the

owner of an exclusive right in the United States.

Eligibility Requirements

To be eligible, a work must meet all of the following requirements:

1 At the time the work was created, at least one author (or rightholder in the

case of a sound recording) must have been a national or domiciliary of an

eligible source country. An eligible source country is a country, other than

the United States, that is a member of the WTO, a member of the Berne

Convention for the Protection of Literary and Artistic Works, or subject to

a presidential proclamation restoring U.S

was created, at least one author (or rightholder in the

case of a sound recording) must have been a national or domiciliary of an

eligible source country. An eligible source country is a country, other than

the United States, that is a member of the WTO, a member of the Berne

Convention for the Protection of Literary and Artistic Works, or subject to

a presidential proclamation restoring U.S. copyright protection to works of

that country on the basis of reciprocal treatment of the works of U.S. nation-

als or domiciliaries.²

2 The work is not in the public domain in the eligible source country through

expiration of the term of protection.

3 The work is in the public domain in the United States because it did not

comply with formalities imposed at any time by U. S. law, lacked subject

matter protection in the United States in the case of sound recordings fixed

before February 15, 1972, or lacked national eligibility in the United States.³

4 If published, the work must have been first published in

an eligible country and not published in the United States

during the 30-day period following its first publication in

the eligible country.

Effective Date of Restoration

January 1, 1996, was the effective date of restoration of copy-

right for works from countries that were members of the

WTO or the Berne Convention on that date. Subsequently,

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.

Term of Copyright

The copyright in any work in which copyright is restored will

last for the remainder of the term of copyright that the work

would have enjoyed if the work had never entered the public

domain in the United States.

Generally, the U. S. copyright term for works published

before January 1, 1978, lasts for 95 years from the year of first

publication

tion to works of that country.

Term of Copyright

The copyright in any work in which copyright is restored will

last for the remainder of the term of copyright that the work

would have enjoyed if the work had never entered the public

domain in the United States.

Generally, the U. S. copyright term for works published

before January 1, 1978, lasts for 95 years from the year of first

publication. Although sound recordings fixed before 1972

were not then protected by federal copyright, those sound

recordings will receive the remainder of the term they would

have received had they been protected by such copyright

when published. For example, a sound recording published

in 1925 will be protected until 2020. For works published on

or after January 1, 1978, the term of copyright is the life of

the author plus 70 years. For example:

• A French short story that was first published with-

out copyright notice in 1935 will be treated as if it had

both been published with a proper notice and properly

renewed, meaning that its restored copyright will expire

on December 31, 2030 (95 years after the U. S. copyright

would have come into existence).

• A Chinese play from 1983 will be protected until Decem-

ber 31 of the 70th year after the year in which its author

dies.

• A Mexican sound recording first published in Mexico in

1965 will be protected until December 21, 2060.

For details about the duration of copyright protection in

the United States, see Circular 15a, Duration of Copyright.

Automatic Restoration

Eligible copyrights are restored automatically and no further

steps need to be taken to make a restored copyright fully

enforceable against any party other than a reliance party.

Notice of Intent to Enforce

Although copyright is restored automatically in eligible

works, the URAA directs the owner of a restored work to

notify reliance parties if the owner of the rights in a restored

work plans to enforce those rights

restored automatically and no further

steps need to be taken to make a restored copyright fully

enforceable against any party other than a reliance party.

Notice of Intent to Enforce

Although copyright is restored automatically in eligible

works, the URAA directs the owner of a restored work to

notify reliance parties if the owner of the rights in a restored

work plans to enforce those rights.

A reliance party is typically a business or individual

who, relying on the public domain status of a work, was

using it before the enactment of the URAA on December

8, 1994. For works from any country that was not eligible

under the URAA as of December 8, 1994, reliance parties are

those using the work before the date on which the country

becomes eligible by joining the WTO or the Berne Conven-

tion or as a result of a presidential proclamation.

The URAA authorizes the owner of a right in a restored

work to either

• provide actual Notice of Intent to Enforce (NIE) a

Restored Copyright by contacting a reliance party directly,

• provide constructive notice by filing an NIE with the

The URAA further directs the Copyright Office to publish

in the Federal Register, the U. S. government’s publication for

official agency notices, a list identifying restored works and

their ownership when NIEs are recorded with the Office. For

inspection and copying by the public, the Office maintains a

list identifying all NIEs. See “Public Record” below for details

about searching NIEs.

Dates for Filing Notices

Owners of restored works can file NIEs directly with reliance

parties at any time after the date of restoration. Owners of

restored works from countries that become eligible source

countries after January 1, 1996, and who want to file NIEs

with the Copyright Office have two years from the date of

eligibility to do so

ic Record” below for details

about searching NIEs.

Dates for Filing Notices

Owners of restored works can file NIEs directly with reliance

parties at any time after the date of restoration. Owners of

restored works from countries that become eligible source

countries after January 1, 1996, and who want to file NIEs

with the Copyright Office have two years from the date of

eligibility to do so. Owners of works whose source coun-

tries were members of the Berne Convention or the WTO

as of January 1, 1996, and who wanted to file NIEs with the

Copyight Office had to do so between January 1, 1996, and

December 31, 1997.⁴ The Office published the first listing of

NIEs on May 1, 1996 (61 Fed. Reg. 19371), and published lists

at four-month intervals over the following two years. All of

the notices are available on the Copyright Office website at

www.copyright.gov/gatt.html.

Grace Period for Use of Restored Works

A reliance party has a 12-month grace period to sell off previ-

ously manufactured stock, perform or display the relevant

work publicly, or authorize others to conduct these activities.

The grace period begins when the reliance party receives

notice that the owner is enforcing the copyright in the

restored work. The date runs from either the date of receipt

of the actual notice or the date of publication of the Federal

by Federal Register publication and service on the reliance

party, the period runs from whichever date is earlier. Except

for certain reliance parties who created derivative works, a

reliance party must cease using the restored work when

the 12-month grace period expires unless the reliance party

reaches a licensing agreement with the copyright owner for

continued use of the restored work

by Federal Register publication and service on the reliance

party, the period runs from whichever date is earlier. Except

for certain reliance parties who created derivative works, a

reliance party must cease using the restored work when

the 12-month grace period expires unless the reliance party

reaches a licensing agreement with the copyright owner for

continued use of the restored work.

Subsection (d)(3) of the amended section 104a of the

works created before December 8, 1994, based on underlying

restored works. Examples include the translation of a restored

work or a motion picture based on a restored book or a play.

A reliance party can continue to exploit such derivative works

if the reliance party pays the owner of the restored copyright

reasonable compensation.

Notices Filed in Copyright Office

The following information describes how to file an NIE with

the Copyright Office. Filing actual notice on a reliance party

is described later in this circular.

Format

The Copyright Office does not provide a form for filing an

NIE. However, the final page of this circular and the regula-

tions published in the Federal Register and the Code of Fed-

eral Regulations contain a sample format that can be used to

file notices. This format is also available on the Copyright

Office’s website at www.copyright.gov/forms/formnie.txt.

The format includes both required and optional infor-

mation. The Copyright Office strongly recommends use of

this format. An NIE filed with the Copyright Office should

be typed or printed legibly by hand on 8 ½" × 11" (or a4, i.e.,

210 × 297 mm) white paper with a 1" (or 3 cm) margin.

Content

The URAA specifies the minimum content of an NIE

ice’s website at www.copyright.gov/forms/formnie.txt.

The format includes both required and optional infor-

mation. The Copyright Office strongly recommends use of

this format. An NIE filed with the Copyright Office should

be typed or printed legibly by hand on 8 ½" × 11" (or a4, i.e.,

210 × 297 mm) white paper with a 1" (or 3 cm) margin.

Content

The URAA specifies the minimum content of an NIE. The

notice must be signed by the copyright owner or the owner’s

agent and must contain the title of the work or a brief

description of the work if it is untitled; an English-language

translation of the title if the title is in a foreign language;

any other alternative titles known to the owner by which the

restored work can be identified; the name of the copyright

owner of the restored work or owner of an exclusive right

therein; and the address and telephone number at which the

owner can be contacted. Although the Copyright Office can

ask for additional information, failure to provide it will not

invalidate the NIE.

The Copyright Office has identified certain information

that is not required by the URAA but is important for proper

identification of a restored work. It includes:

1 type of work (for example, painting, sculpture, music,

motion picture, sound recording, or book)

2 name of author(s)

3 source country

4 approximate year of first publication

5 additional identifying information (for example, for

movies: director, leading actors, screenwriter, animator; for

photographs: subject matter; for books: editor, publisher,

contributors)

6 rights owned by the party on whose behalf the NIE is filed

(for example, the right to reproduce, distribute, publicly

display, or publicly perform the work or to prepare a

derivative work based on the work)

7 email address and fax number at which the owner, exclu-

sive rights holder, or agent can be reached

Multiple Works

Multiple works can be included on a single NIE provided

that (a) each work is identified by title or a brief description

if untitled; (

example, the right to reproduce, distribute, publicly

display, or publicly perform the work or to prepare a

derivative work based on the work)

7 email address and fax number at which the owner, exclu-

sive rights holder, or agent can be reached

Multiple Works

Multiple works can be included on a single NIE provided

that (a) each work is identified by title or a brief description

if untitled; (b) all the works have the same author; (c) all the

works are owned by the same copyright owner or the owner

of the exclusive rights therein; and (d) the rights owned by

the party on whose behalf the notice is being filed are the

same.

Signature and Certification

The NIE must be signed by the owner of the restored copy-

right, the owner of an exclusive right therein, or an agent of

the owner. The agency relationship must be established in

writing and signed by the owner before the NIE is filed.

The NIE must include a certification statement indicating

that the information given is correct to the best of the filer’s

knowledge. Any material false statement knowingly made

with respect to any restored copyright identified in an NIE

shall void all claims and assertions against reliance parties

made about such restored copyright. The sample format on

the final page of this circular includes a certification

statement.

Fee

The nonrefundable fee for filing an NIE covers a notice inclu

ding one work. For a notice covering multiple works, there is

an additional fee for each group of 10 titles. The fee includes

the cost of acknowledging a recordation by mail after the

See Circular 4, Copyright Office Fees, for details about

current fees and acceptable payment methods. The fee appli-

cable to NIEs is listed under the subheading Recordation of

Documents. Note that credit cards are accepted for filings

under the URAA, even though the Copyright Office does not

accept credit cards for other filings on paper forms

ail after the

See Circular 4, Copyright Office Fees, for details about

current fees and acceptable payment methods. The fee appli-

cable to NIEs is listed under the subheading Recordation of

Documents. Note that credit cards are accepted for filings

under the URAA, even though the Copyright Office does not

accept credit cards for other filings on paper forms. To pay

by credit card, a filer must provide in a separate letter the

name on the credit card being used, the credit card number,

the expiration date of the credit card, the total amount

authorized to be charged, and a signature authorizing the

the security of the credit card number, the credit card number

must not appear on the NIE, since the notice becomes part of

the public record.

Filers should ensure that sufficient fees accompany an

NIE. Filing with insufficient fees can delay the effective date

of notice.

note: Copyright Office fees are subject to change.

For current fees, please check the Copyright Office website

at www.copyright.gov, write the Copyright Office, or call

(202) 707-3000.

Address

Send NIEs to the following address:

GC / I&R

P .O. Box 70400, Southwest Station

Washington, DC 20024 USA

Do not mail them to the Copyright Office.

Notice Filed Directly on Reliance Party

The Copyright Office does not provide a form for serving

an NIE directly on a reliance party. Filers who wish to do

so should note that the URAA requires additional informa-

tion for notices served directly on reliance parties compared

with notices filed with the Copyright Office. Therefore, if a

filer uses the Copyright Office’s NIE format as a guide for

serving notice directly on a reliance party, the notice will be

incomplete unless additional details are supplied

a reliance party. Filers who wish to do

so should note that the URAA requires additional informa-

tion for notices served directly on reliance parties compared

with notices filed with the Copyright Office. Therefore, if a

filer uses the Copyright Office’s NIE format as a guide for

serving notice directly on a reliance party, the notice will be

incomplete unless additional details are supplied. The URAA

specifications follow, with italic type inserted to show the

additional requirements for serving notice directly:

Notices of Intent to Enforce a Restored Copy-

right 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 reli-

ance 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. [Section

514 of the URAA as found in 17 U.S.C. section

104a(e)(2)(B) of the URAA]

Direct notice can be served on a reliance party at any time

after copyright in the work is restored.

Restoration of Copyright Claims

The URAA directs the Copyright Office to provide proce-

dures for registering copyright claims; however, copyright

owners of restored works need not register their works.

of a work that is not considered a Berne Convention work

must register the work or seek registration before he or she

can bring a copyright infringement action in federal court.⁵

The owner of rights in a Berne Convention work, how-

ever, does not have to register before initiating a copyright

infringement suit

ot register their works.

of a work that is not considered a Berne Convention work

must register the work or seek registration before he or she

can bring a copyright infringement action in federal court.⁵

The owner of rights in a Berne Convention work, how-

ever, does not have to register before initiating a copyright

infringement suit.

Registration of Claim in Berne Convention Work

A claim in a restored work can be registered only in the name

of the owner(s) of the U. S. copyright on the date that the

application is submitted, that is, in the name of the owner(s)

of all U. S. rights in that work. A licensee or party whose own-

ership extends only to certain exclusive rights in a work is

not permitted to register a claim in a restored work in his or

her name.

Registration Form

Form GATT must be used to register copyright claims in

works restored under the URAA. To obtain it, go to the Copy-

right Office’s website at www.copyright.gov/forms or call (202)

707-9100 and leave a recorded message. Alternatively, write to:

Library of Congress

101 Independence Avenue SE

Washington, DC 20559

Publication

The following guidelines may help in determining required

publication information for restored works for which regis-

tration is sought.

• For works published on or after January 1, 1978: Publica-

tion is the distribution anywhere in the world of copies

or phonorecords of a work to the public by sale or other

transfer of ownership or by rental, lease, or lending. The

offering to distribute copies or phonorecords 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 in itself

constitute publication. (17 U.S.C

rld of copies

or phonorecords of a work to the public by sale or other

transfer of ownership or by rental, lease, or lending. The

offering to distribute copies or phonorecords 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 in itself

constitute publication. (17 U.S.C. 101)

• For works published before January 1, 1978: General pub-

lication may be defined as the act of making one or more

copies of a work available to the general public, usually

by the sale, placing on sale, or public distribution of one

or more copies or sound recordings without express or

implied restrictions as to future use. Limited publication

may be defined as the act of making a work available to a

limited audience for a limited purpose and with express

or implied restrictions as to future use. Recordings of

musical compositions were not considered copies of

recorded music before January 1, 1978. A distribution of a

recording before that date would constitute publication of

the sound recording but not the music contained on the

recording.

Registration Fee

The basic registration fee also applies to a series of works

published during a calendar year under a single title in epi-

sodes, installments, or issues. Copyright Office fees are sub-

ject to change. For current fees, check the Copyright Office

website at www.copyright.gov, write the Copyright Office, or

call (202) 707-3000.

Public Record

The information contained in NIEs filed with the Copyright

Office and in copyright registrations and related documents

catalogued since January 1, 1978, is available on the Copy-

right Office website at www.copyright.gov/gatt.html and open

to the public for searching

es, check the Copyright Office

website at www.copyright.gov, write the Copyright Office, or

call (202) 707-3000.

Public Record

The information contained in NIEs filed with the Copyright

Office and in copyright registrations and related documents

catalogued since January 1, 1978, is available on the Copy-

right Office website at www.copyright.gov/gatt.html and open

to the public for searching .

Online Searches

Information accessible on the website includes the title of

a work or a brief description of it if untitled; an English

translation of the title; the alternative titles, if any; the name

of the copyright owner or the owner of an exclusive right;

the author; the type of work, if given; the date of receipt of

the NIE in the Copyright Office; the date of publication of

NIE details in the Federal Register; the rights covered by the

notice, if given; and the address, telephone, and fax number,

if given, of the copyright owner. Online records are search-

able by the title of a work, the copyright owner or the owner

of an exclusive right, and the author.

Office Searches

The Copyright Office’s Public Records Reading Room is

located in Room lm-404 of the James Madison Memorial

Building of the Library of Congress. Public records of NIEs

can be searched Monday through Friday, 8:30 am to 5:00 pm,

eastern time, except federal holidays. Public terminals are

available.

Upon payment of a fee, the Copyright Office staff will

search the records and provide a written report

opyright Office’s Public Records Reading Room is

located in Room lm-404 of the James Madison Memorial

Building of the Library of Congress. Public records of NIEs

can be searched Monday through Friday, 8:30 am to 5:00 pm,

eastern time, except federal holidays. Public terminals are

available.

Upon payment of a fee, the Copyright Office staff will

search the records and provide a written report. For details,

see Circular 22, How to Investigate the Copyright Status of a

Work, or contact:

Library of Congress

101 Independence Avenue SE

Washington, DC 20559 USA

tel: (202) 707-6850 or 1-877-476-0778 (toll free)

fax: (202) 252-3485

email: copysearch@copyright.gov

Relationship to NAFTA

Under the North American Free Trade Agreement (NAFTA)

Implementation Act, some Mexican motion picture owners

filed timely statements of intent to restore copyright in

the United States with the Copyright Office.⁶ These works

continue to enjoy copyright protection, but the protection

is now governed by section 104a of the Copyright Act as

amended by the URAA. Copyright owners of these works

need not file an NIE under the URAA.

However, other works from NAFTA countries that are in

the public domain in the United States, including motion

pictures for which no NAFTA restoration was sought, are

subject to copyright restoration under the amended section

104a. NAFTA works that have not been registered can be

registered using the URAA registration procedures, including

GATT forms and deposit preferences.

For Further Information

By Internet

Circulars, announcements, regulations, application forms,

and other related materials are available from the Copyright

Office website at www.copyright.gov.

By Telephone

For general information about copyright, call the Copyright

Public Information Office at (202) 707-3000 or 1-877-476-

0778 (toll free). Staff members are on duty from 8:30 am to

5:00 pm, Monday through Friday, eastern time, except federal

holidays

ts, regulations, application forms,

and other related materials are available from the Copyright

Office website at www.copyright.gov.

By Telephone

For general information about copyright, call the Copyright

Public Information Office at (202) 707-3000 or 1-877-476-

0778 (toll free). Staff members are on duty from 8:30 am to

5:00 pm, Monday through Friday, eastern time, except federal

holidays. Recorded information is available 24 hours a day.

To request paper application forms or circulars, call (202)

707-9100 or 1-877-476-0778 and leave a recorded message.

By Regular Mail

Write to:

Library of Congress

101 Independence Avenue SE

Washington, DC 20559

Notes

1. The URAA is contained in Pub. L. No. 103-465, 108 Stat. 4809. See also

House Document 103-316, 103d Congress, 2d Session, September 27,

1994, and Statement of Administrative Action Id. 656, 981. The URAA

amends U. S. copyright law at 17 U.S.C. section 104A, 109 (b). The URAA

also adds a new chapter 11 to title 17 and a new section 2319A to title 18.

2. The United States has bilateral relations with certain countries, some

of which may have extended copyright protection to some of their colo-

nies or territories. In addition, the definition of a “United States work”

has been expanded since the URAA was enacted to include countries

that are members of the Copyright Treaty of the World Intellectual

Property Organization (WIPO) and the WIPO Performances and Phono-

grams Treaty.

3. Works in the public domain because of a failure to comply with one

or more of the formalities required by U. S. copyright law include those

for which the copyright owner may, for example, have published the

work without a proper copyright notice, failed to renew the copyright,

or failed to comply with the manufacturing clause or ad interim provi-

sions of the copyright law.

4. Although a country can become a source country through a presiden-

tial proclamation, only one such proclamation has been issued to date

ht law include those

for which the copyright owner may, for example, have published the

work without a proper copyright notice, failed to renew the copyright,

or failed to comply with the manufacturing clause or ad interim provi-

sions of the copyright law.

4. Although a country can become a source country through a presiden-

tial proclamation, only one such proclamation has been issued to date.

That proclamation has to do with Viet Nam.

5. The legislation did not specifically address the question whether a

work from a country that is a member of the WTO but not Berne must

be registered. But one can assume that works that do not come under

the definition of “Berne Convention work” found in 17 U.S.C. 101 would

have to be registered before the owner could initiate a suit.

6. The NAFTA Implementation Act is contained in Pub.L. No. 103-182,

107 Stat. 2057. See 60 Fed. Reg. 8252 (February 13, 1995) for a list of the

works affected by the statements of intent to restore.

U. S. Copyright Office · Library of Congress · 101 Independence Avenue SE · Washington, DC 20559 · www.copyright.gov

circular 38b

reviewed: 01/2013

Printed on recycled paper

u. s. government printing office: 2013-xxx-xxx ⁄ xx,xxx

Notice of Intent to Enforce (NIE) a Copyright Restored

Under the Uruguay Round Agreements Act (URAA)

Title:

(If this work does not have a title, state “No title.”)

Brief description of work:

(for untitled works only)

English translation of title (if any):

Alternative title(s) (if any):

Type of work:

(e.g., painting, sculpture, music, motion picture, sound recording, book)

Name of author(s):

Source country:

Approximate year of publication:

Additional identifying information:

(e.g., for movies: director, leading actors, screenwriter, animator; for photographs: subject matter; for books: editor,

publisher, contributors, subject matter)

Name of copyright owner:

(Statements can be filed in the name of the owner of the restored copyright or the owner of an excl

hor(s):

Source country:

Approximate year of publication:

Additional identifying information:

(e.g., for movies: director, leading actors, screenwriter, animator; for photographs: subject matter; for books: editor,

publisher, contributors, subject matter)

Name of copyright owner:

(Statements can be filed in the name of the owner of the restored copyright or the owner of an exclusive right therein.)

10 If you are not the owner of all rights,

specify the rights you own:

(e.g., the right to reproduce/distribute/publicly display/publicly perform the work or to prepare a derivative work based

on the work)

Address at which copyright owner

can be contacted:

(Give the complete address, including the country, and an “attention” line, or “in care of” name, if necessary.)

12 Telephone number of owner:

13 Telefax number of owner:

14 Certification and signature:

I hereby certify that, for each of the work(s) listed above, I am the copyright owner, or the owner of an exclusive right, or the

owner’s authorized agent, the agency relationship having been constituted in a writing signed by the owner before the filing

of this notice, and that the information given herein is true and correct to the best of my knowledge.

Signature:

Name (printed or typed):

As agent for (if applicable):

Date:

note: Notices of Intent to Enforce should be in English, except for the original title, and either be typed or printed

legibly by hand in dark, preferably black, ink. They should be on 8 ½" × 11", (or a4, 210 × 297 mm) white paper of good

quality, with at least a 1" (or 3 cm) margin.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.