Copyright restoration and foreign works: be careful

There’s one more thing you should be aware of when using public domain works: copyright restoration. Restoration? But don’t public domain works always stay in the public domain? Well, in the case of certain works that were first published outside the US ... no.

Here’s the deal. Works from certain countries that were in the public domain because they didn’t comply with formalities of US law (like notice and renewal requirements), or because they were published in countries that didn’t have copyright relations with the US (like the Soviet Union before 1973) had their copyrights restored on January 1, 1996. This happened through the Uruguay Round Agreements Act (URAA), which implemented the General Agreement on Tariffs and Trade (GATT). (If you care about such things, the URAA is Pub. L. No. 103-465, 108 Stat. 4809, enacted December 8, 1994.)

What works are eligible for copyright restoration?

To be eligible for copyright restoration, a work must meet all of these requirements:

At the time the work was created, at least one author must have been a citizen or resident of a country that has copyright relations with the US (by way of the Berne Convention, the WTO, or a presidential proclamation extending restored copyright protection to that country on the basis of reciprocal treatment to the works of US citizens or residents);
As of January 1, 1996, the work was still protected by copyright in its source country;
The work was in the public domain in the US because the work did not comply with formalities imposed at any time by the US law; and
The work was not published in the US within 30 days of its first publication abroad.

Note: Works that are in the public domain for reasons other than failure to comply with copyright formalities, or lack of US copyright relations (works whose full US copyright term has expired, for example), are not eligible for copyright restoration.

Works that meet the restoration requirements have a copyright term equal to what they would have had they complied with all US formalities. The US copyright term for works published before January 1, 1978, generally lasts for 95 years from the year of first publication. For works published on or after January 1, 1978, copyright lasts for the life of the author plus 70 years. For example:

A French film first published in France in 1937, and whose US copyright was not renewed, will be protected through December 31, 2032.
An Italian sound recording first published in Italy in 1965 will be protected through December 31, 2060.
A Swedish play published without a copyright notice in 1983 will be protected through December 31 of the seventieth year after the year in which its author dies.
A German novel that was first published without 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.

Here’s a small sample of works that have had their US copyrights restored:

Works by J.R.R. Tolkien, including the Lord of the Rings trilogy
Hundreds of works by Picasso, including Guernica and his portraits of Dora Maar and Gertrude Stein
The works of M.C. Escher (the first lawsuit under the URAA involved his works — see Cordon Art B.V. v. Walker, 40 U.S.P.Q. 2d 1506 (S.D.Cal. 1996)).
Fritz Lang’s Metropolis
Alfred Hitchcock’s The Man Who Knew Too Much (1934 version)
Leni Riefenstahl’s Triumph of the Will
Jean Renoir’s Grand Illusion
Jean-Luc Godard’s Breathless
Works by composers such as Igor Stravinsky, Dmitri Shostakovich, Sergei Prokofiev, and Sergei Rachmaninoff, for example Prokofiev’s Peter and the Wolf, Stravinsky’s Soldier’s Tale, Rachmaninoff’s Symphonic Dances, and Shostakovich’s Tenth Symphony
Several works by Doris Lessing, including A Proper Marriage and Martha Quest
Astrid Lindgren’s Pippi Longstocking books (three of the four Pippi books had their copyrights restored)
Several works by H.G. Wells, including A Short History of the World
The French (Delpire) edition of Robert Frank’s The Americans

... and there are countless others. But you get the picture, I’m sure. It’s very unlikely that a work first published abroad within the last 50 years will be in the US public domain. Just so you know.

Caveat: The URAA copyright restoration rule (which amended US copyright law as 17 USC § 104A) generally will apply to works of this ilk ... but there’s a different rule in the US Ninth Circuit. In the Ninth Circuit works that were first published outside the US without a valid copyright notice will be treated the same as unpublished works.

How do you know a work’s copyright has been restored?

Because copyright restoration is automatic, there is no list of restored works that you can consult. No documents needed to be filed. If the work was eligible, end of story. As of January 1, 1996, the work was removed from the US public domain and the copyright owner can sue others for infringement. But ...

What about people who were already using these works, believing them to be in the public domain?

Using a restored work without permission after January 1, 1996, is copyright infringement. But what about people who began using these works before the URAA was enacted (December 8, 1994), relying on the fact that they were public domain works?

Such people are called (in legal speak) “reliance parties” (makes sense, yes?). Since their use was perfectly legal (these works actually were in the public domain, remember), the URAA requires owners of restored copyrights to notify reliance parties if they plan to enforce their rights.

The owner of a restored copyright can’t enforce his or her rights against reliance parties unless he or she notifies them:

by providing actual notice to a specific reliance party directly, or
by providing what’s called “constructive notice” through filing a Notice of Intent to Enforce a restored copyright (NIE) with the Copyright Office

If the owner chose to go the constructive notice route (filing the NIE with the Copyright Office) and the source country was a member of the Berne Convention or the WTO as of January 1, 1996, that owner must have filed the NIE between January 1, 1996, and December 31, 1997. So ... the filing window has closed for most countries of the world.

The law requires the Copyright Office to publish lists identifying restored works where NIEs have been filed. (The lists are published in the Federal Register). These lists can be helpful if you’re unsure about the public domain status of a work that was first published outside the US. Just remember, though, that copyright restoration is automatic for eligible works and NIEs are only used to notify reliance parties of the owner’s intent to enforce the copyright.

The Copyright Office states here that you can search records of NIEs through the Copyright Catalog of Documents (but the link is dead, at least as of 5/6/2013). You can also view the titles of restored works that have been published in the Federal Register here as well.

And remember ... not all foreign published works were restored

Many works that were first published outside the US have had their copyrights automatically restored. (Nobody knows how many, but it’s got to be a big-ass number.) Remember, though ... not all works are eligible for copyright restoration. Still in the public domain in the US are:

Works first published abroad before 1891, when the US first extended copyright protection to foreign works
Works that received a full term of copyright protection in the US (their copyrights have expired)
Works that were in the public domain in their source country on January 1, 1996
Works first published in countries that have no copyright relations with the US (see Copyright Office list)
Works that were published in the US within 30 days of being published abroad

The end?

Yep, this really is the end of the tutorial. Finally. I hope it’s been helpful. If it has, I’d love it if you’d let me know. And if you have any questions, ditto.