[Federal Register: November 15, 1994]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 93-13B]
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: Final regulations.
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SUMMARY: The Copyright Office is issuing final regulations establishing
procedures that govern 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. These final regulations
make several modifications or clarifications to the interim regulations
and are effective immediately.
DATES: These final regulations are effective November 15, 1994.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General
Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station,
Washington, D.C. 20024. 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 motion pictures and
their contents. 59 FR 1408 (1994). On March 16, 1994, the Copyright
Office published interim regulations with a request for comments to
establish procedures governing the filing of Statements of Intent for
the restoration of copyright protection in the United States for these
works. 59 FR 12162 (1994). A total of four public comments were
received. These final regulations adopt most of the recommendations
made in the comments to improve the system of filing Statements of
Intent. Some Statements of Intent have already been filed with the
Office. The amendments to the interim regulations, including the
certification statement, do not affect these statements; they are
governed by the regulations effective at the time they were filed.
However, the Office will contact the filers of these Statements to ask
if they wish to modify their Statements to comply fully with our final
regulations.
Works Eligible for Restoration
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.
The interim regulations set out the procedures potential copyright
owners should follow to have copyright protection for their works
restored in the United States. In order for copyright to be restored in
an eligible work, the potential copyright owner or an authorized agent
must file a complete and timely Statement of Intent with the Copyright
Office by December 31, 1994. These Statements must contain the
information set out in the final regulations.<SUP>1 This information
will be used by the Office to create a public record of the works
restored to copyright protection.
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\1\Additional information that may be useful in filing a
Statement of Intent appeared in the Federal Register, 59 FR 12162
(March 16, 1994), and in Copyright Office Announcement ML-476 which
is available by contacting the Public Information Office at (202)
707-3000.
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Summary of Comments
We received a total of four written comments from: Jon Baumgarten,
an attorney representing the Motion Picture Association of America
(MPAA); Carmen Quintanilla Madero, Director General of the Mexican
Copyright Office; Phil Hochberg, an attorney representing the National
Hockey League; and James Bouras, an attorney. Most recommended
modifying the interim regulations to identify clearly each work that
will enjoy copyright restoration. For example, Mr. Baumgarten suggested
a requirement
That Statements of Intent include identification of the title
and potential copyright owner of works included in qualifying motion
pictures; to avoid uncertainty and misreliance (by any party,
``owner'' or ``user''), the regulations should provide that if any
work is not so identified, or is inadequately identified, it is not
protected.
Comment letter of Baumgarten at pp. 2-3.
Mr. Hochberg pointed out that since most sports programs do not
have a title, they should be identified by the sporting event, team
names, and date. Comment letter of Hochberg at p 2. The Office is
amending the final regulations to incorporate both of these
recommendations.
Mr. Bouras suggested that all Statements of Intent for titles in a
foreign language require a literal translation of that title into
English. Comment letter of Bouras at p 1. The Office will not require
literal English translations of titles for foreign language works.
However, the Office strongly recommends the inclusion of any alternate
title, especially a title under which a work may have been subsequently
released in the United States.
Mr. Bouras also stated that the inclusion of names of the stars of
the film, authors of the book or play, and composers of the underlying
music would help identify the work and asked that the final regulation
either require or encourage the use of this information. The Office has
decided not to require this information because it would create a
burden on potential owners.
Prior to filing a comment, Carmen Quintanilla Madero from the
Mexican Copyright Office wrote to Marybeth Peters asking for the status
of motion pictures published before January 1, 1978. Both Ms. Peters
and the Acting Register Barbara Ringer responded that the NAFTA
Implementation Act only covered works published without notice between
January 1, 1978, and March 1, 1989.<SUP>2
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\2\Both letters indicated that the United States Congress might
address the status of works published without notice before January
1, 1978, when it considered the GATT legislation. Letter of Marybeth
Peters to Carmen Quintanilla Madero, April 25, 1994; letter of
Barbara Ringer to Carmen Quintanilla Madero, June 23, 1994.
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Ms. Quintanilla's letter expressed concern that the NAFTA
Implementation legislation addresses only works that lost their U.S.
copyright protection by publication without a copyright notice on or
after January 1, 1978. She believes that the intent of the Mexican
negotiator was not satisfied and claims that
The clear goal of Mexico in negotiating Annex 1705.7 was to
restore U.S. Copyright protection for Mexico's ``Golden Age''
movies, which were released mostly prior to 1978.
Comment letter of Quintanilla at p 1.
Regardless of the fact that most of the Mexican films may not come
within this window, the Office finds no authority to extend the window
provided by Congress. The Intellectual Property Annex to the North
American Free Trade Agreement refers specifically to section 405
(Notice of Copyright: Omission of Notice) of the U.S. copyright law.
This section of the copyright law was enacted in 1976 in the general
revision of the copyright law and became effective January 1, 1978. The
specific reference to section 405 is included in the NAFTA
Implementation Act (Pub. L. No. 103-182) and the language of the Act is
very clear, providing that only works published between January 1,
1978, and March 1, 1989, are eligible for the restoration of copyright
protection. Therefore, it is not possible to amend our draft
regulations to cover works published before 1978.
Victor Blanco, Vice President of Copyright Affairs, Televisa South
America, visited the Office on September 13, 1994. After having
reviewed the interim regulations, he suggested a change in the language
of the certification to clarify that the certifying party can certify
only that he or she understands the work entered the public domain in
the United States. The Office is revising the certification statement
in response to Mr. Blanco's suggestion because a filer may not be an
expert in U.S. copyright law and thus he or she can only certify what
he or she understands to be the status of the work.
Final Regulations
Two types of works are eligible for copyright restoration: (1)
motion pictures; and (2) works included in motion pictures (underlying
works such as a novel or play on which a motion picture was based, the
original screenplay or the original musical score of a motion picture).
The overall objective in issuing these final regulations is to keep
the Statement of Intent process simple and to identify clearly the
works eligible for restoration. Based on the comments received in
response to the Notice of Inquiry, the Office is making several changes
intended to help identify works for which copyright has been restored.
Identification of Titles of Underlying Works
If the potential copyright owner of both the motion picture and the
underlying work(s), such as a screenplay or musical composition, is the
same, all such works can be included on a single Statement of Intent.
However, if the title of any underlying work is different from the
title of the motion picture, all titles must be given.
As already specified in the interim regulations, if the potential
copyright owner of the motion picture is different from the potential
copyright owner(s) of the underlying work(s), separate Statements of
Intent must be filed.
Identification of Untitled Programs
Sports programs that do not have a title can be identified by
giving the sporting event, team names, and a date, for example,
National Hockey League, New York Rangers at Toronto Maple Leafs, April
25, 1978.
English Translations of Titles
The English translation of titles for foreign language works is not
required, but the Office strongly encourages the filer of a Statement
of Intent to include any alternate title, especially a title under
which a work may have been subsequently released in the United States.
Certification Statement
The language required in the certification by the potential owner
or authorized agent is revised to clarify that the certifying party can
certify only that he or she understands the work entered the public
domain in the United States. See Item 6 of the Appendix. A party making
this certification must use the required language but specify in the
certification the country, Mexico or Canada, in which the work was
first fixed or first published.
In addition, the Office is requiring that the party submitting the
statement print or type his or her name under the signature.
All statements should be mailed to the Copyright Office at: NAFTA,
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC
20024.
Or they may be delivered to the Copyright Office's Public
Information Office in Room 401, James Madison Memorial Building, 101
Independence Avenue SE., Washington, DC, Monday-Friday, 8:30 a.m.-5:00
p.m. To be received timely they must reach the Office on or before
December 31, 1994.
Appendix--as Revised by Final Regulations
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:----------------------------------------------------
If the Statement of Intent covers the entire motion picture,
give the title of the motion picture.
If the Statement of Intent includes the motion picture and an
underlying work(s), and any underlying work has a title different
from the title of the motion picture, give both the title of the
motion picture and the title(s) of underlying work(s). Also specify
the kind of underlying work covered, for example, ``screenplay'' or
``music.'' This situation applies only when the potential copyright
owner is the same for the works.
If the Statement of Intent covers only an underlying work, give
the title of the motion picture and specify the kind of underlying
work covered, for example, ``screenplay'' or ``music.'' In addition,
if the underlying work has a title that is different from the title
of the motion picture, give both titles, for example, state ``(title
of underlying work) contained in (title of motion picture).''
If the Statement of Intent covers more than one motion picture,
complete items 1-4 for each motion picture. This situation applies
only where the potential copyright owner is the same for all motion
pictures listed on the Statement.
Sports programs that do not have a ``title'' can be identified
by giving the sporting event, team names and a date (month, day and
year).
1a. Include series and episode title(s)/number(s), if any
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1b. (Optional) Alternative titles (for example, U.S. release
title, if different from foreign title; English translation for
foreign language titles, etc.)
1c. (Optional) Original producer and/or director---------------------
1d. (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
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and (insert Mexico or Canada) understand that the work(s) have
entered the public domain in the United States of America because of
first publication on or after January 1, 1978, and before March 1,
1989, without the notice required by U.S. Copyright Law. 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:-------------------------------------------------------------
Name (Printed or Typed):-----------------------------------------------
Date:------------------------------------------------------------------
List of Subjects in 37 CFR Part 201
Copyright, North American Free Trade Agreement Restoration of
copyright for certain works.
Final Regulations
For the reasons set out in the preamble, 37 CFR chapter II is
amended in the manner set forth below.
PART 201--[AMENDED]
1. The authority citation for part 201 continues to read as
follows:
Authority: Sec. 702, 90 Stat. 2541; 17 U.S.C. 702; Pub. L. No.
103-182, 107 Stat. 2115.
2. Section 201.31 is amended by revising paragraph (d)(2),
redesignating paragraphs (d) (3) and (4) as (d) (6) and (7), and adding
new paragraphs (d) (3), (4) and (5) as follows.
* * * * *
(d) Requirements for Effective Statements of Intent. * * *
(2) Statements of Intent must include:
(i) the title(s) of the work(s) for which copyright restoration is
sought, including any underlying work(s) that has a title(s) different
from the title of the motion picture, provided all works are owned by
the same potential copyright owner;
(ii) the nation of first fixation;
(iii) the nation of first publication;
(iv) the date of first publication;
(v) the name and mailing address (and telephone and telefax, if
applicable) 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:
Certification and Signature: I hereby certify that each of the
above titled works was first fixed or first published in
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and (insert Mexico or Canada) understand that the work(s) have
entered the public domain in the United States of America because of
first publication on or after January 1, 1978, and before March 1,
1989, without the notice required by U.S. copyright law. 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:-------------------------------------------------------------
Name (Printed or Typed):-----------------------------------------------
Date:------------------------------------------------------------------
(3) If copyright restoration is sought for an underlying work only,
the Statement of Intent must specify the kind of underlying work
covered and give the title if different from the title of the motion
picture.
(4) More than one motion picture may be included in a single
Statement of Intent provided the potential copyright owner is the same
for all the motion pictures. The information required in Section 201.31
(d)(2)(i) through (d)(2)(iv) must be given for each work.
(5) Sports programs that do not have a title can be identified in a
Statement of Intent by giving the sporting event, the team names and
the date (month, day and year).
* * * * *
Dated: November 8, 1994.
Marybeth Peters,
Register of Copyrights.
James H. Billington,
The Librarian of Congress.
[FR Doc. 94-28165 Filed 11-14-94; 8:45 am]
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