§ 104A. Copyright in restored works
(a)
Automatic Protection and Term.—
(b)
Ownership of Restored Copyright.—
A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work.
(c)
Filing of Notice of Intent to Enforce Restored Copyright Against Reliance Parties.—
On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright Office a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright Office is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice.
(d)
Remedies for Infringement of Restored Copyrights.—
(1)
Enforcement of copyright in restored works in the absence of a reliance party.—
As against any party who is not a reliance party, the remedies provided in chapter
5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration.
(2)
Enforcement of copyright in restored works as against reliance parties.—
As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter
5 of this title shall be available, with respect to an act of infringement of a restored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met:
(A)
(i)
The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright Office, during the 24-month period beginning on the date of restoration, a notice of intent to enforce the restored copyright; and
(ii)
(I)
the act of infringement commenced after the end of the 12-month period beginning on the date of publication of the notice in the Federal Register;
(B)
(i)
The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a notice of intent to enforce a restored copyright; and
(ii)
(I)
the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received;
In the event that notice is provided under both subparagraphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publication or service of notice.
(3)
Existing derivative works.—
(A)
In the case of a derivative work that is based upon a restored work and is created—
(i)
before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the restored work is an eligible country on such date, or
(ii)
before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment,
a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph.
(B)
In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work.
(4)
Commencement of infringement for reliance parties.—
For purposes of section
412, in the case of reliance parties, infringement shall be deemed to have commenced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration.
(e)
Notices of Intent To Enforce a Restored Copyright.—
(1)
Notices of intent filed with the copyright office.—
(A)
(i)
A notice of intent filed with the Copyright Office to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsection (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright Office may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register.
(ii)
If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it.
(iii)
Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B).
(B)
(i)
The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed.
(C)
The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto.
(D)
(i)
Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Property referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright Office shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright.
(2)
Notices of intent served on a reliance party.—
(A)
Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of restoration of the restored copyright.
(B)
Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice.
(f)
Immunity From Warranty and Related Liability.—
(1)
In general.—
Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section
106 shall not be liable for legal, equitable, arbitral, or administrative relief if the warranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warranty, promise, or guarantee is made before January 1, 1995.
(g)
Proclamation of Copyright Restoration.—
Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work—
(1)
of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or
The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation.
(h)
Definitions.—
For purposes of this section and section
109
(a):
(1)
The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes—
(2)
The “date of restoration” of a restored copyright is—
(3)
The term “eligible country” means a nation, other than the United States, that—
(A)
becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act;
(4)
The term “reliance party” means any person who—
(A)
with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section
106 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts;
(6)
The term “restored work” means an original work of authorship that—
(C)
is in the public domain in the United States due to—
(i)
noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements;
(D)
has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and
(8)
The “source country” of a restored work is—