Chapter 2000 : 4 12/22/2014

COMPENDIUM: Chapter 2000

Foreign Works: Eligibility and GATT Registration

2001 What This Chapter Covers

This Chapter explains when authors of foreign works may apply to register their works with the U.S. Copyright Office. This Chapter is applicable to unpublished works, whenever created, and to works published on or after January 1, 1978.

This Chapter also discusses Form GATT, which may be used to register a restored work that is eligible for copyright protection under the Uruguay Round Agreements Act (“URAA”). Restored works comprise a small subset of foreign works, and applicants must use Form GATT to register these types of works.

• For a general overview of the registration process, see Chapter 600.
• For a discussion of copyrightable subject matter, see Chapter 300.
• For guidance in determining who may file the application and who may be named as the copyright claimant, see Chapter 400.
• For guidance in identifying the work that will be submitted for registration, see Chapter 500.
• For instructions on completing the online application or a paper application (other than an application submitted on Form GATT), see Chapter 600.
• For guidance on the filing fee, see Chapter 1400.
• For guidance on submitting the deposit copy(ies), see Chapter 1500.
• For guidance on publication, see Chapter 1900.

2002 What Is a Foreign Work and Are They Treated Differently?

2002.1 What Is a Foreign Work?

For purposes of copyright registration, the term “foreign works” generally refers to works created by author(s) who are not U.S. citizens or U.S. nationals and/or works that were first published abroad. Generally, the author is the person or persons who actually created the material that the applicant intends to register. There is an exception to this rule if the work is a work made for hire. For a definition and discussion of works made for hire, see Chapter 500, Section 506.

U.S. citizens are people who are citizens in accordance with the U.S. Constitution or federal statutes, including (i) people born in Guam, the U.S. Virgin Islands, and Puerto Rico; and (ii) certain people who are by federal statute nationals, but not citizens of the United States, including people born in the outlying possessions of the United States. All U.S. citizens are also U.S. nationals. Works by U.S. citizens and nationals are not considered foreign works, and generally they are eligible for U.S. copyright protection.

The types of works that may be protected under the Copyright Act include literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works; as well as derivative works, compilations, and collective works. For a definition and discussion of these types of works, see Chapter 500, Sections 507 (Derivative Works), 508 (Compilations), and 509 (Collective Works), and Chapters 700 (Literary Works), 800 (Works of the Performing Arts), and 900 (Visual Art Works).

2002.2 Are Foreign Works Treated Differently?

Previously, many foreign works were not eligible for copyright protection in the United States. The law, however, has been amended several times and now, in the vast majority of cases, foreign works may be registered with the U.S. Copyright Office. Foreign works must still satisfy the Copyright Act’s eligibility requirements, which are discussed in Section 2003.

U.S. law applies to United States works and foreign works if the work becomes involved in litigation in this country. U.S. law requires that U.S. works be registered (or officially refused registration) before they can be the subject of a copyright infringement lawsuit, and the registration must be made in a timely manner for attorney’s fees and statutory damages to be available. Non-U.S. works need not be registered (or refused registration) to be the subject of a copyright infringement lawsuit, although timely registration is still required for attorney’s fees and statutory damages.

2003 Eligibility Requirements: How to Determine if a Foreign Work Is Eligible for Registration with the U.S. Copyright Office

Section 104 of the Copyright Act sets forth the categories of foreign works that are eligible for copyright protection under U.S. law. This Section describes each of these categories.

2003.1 Unpublished Works

All unpublished works are subject to protection under the Copyright Act. 17 U.S.C. § 104(a). Therefore, unpublished foreign works are eligible for registration with the U.S. Copyright Office without any further analysis. For a detailed explanation of when a work is considered published, see Chapter 1900.

2003.2 Published Works

The Copyright Act protects many published foreign works. Specifically, Section 104(b) of the Copyright Act specifies the categories of published works that are eligible for Chapter 2000: 6 12/22/2014 copyright protection in this country. These categories are described in Sections 2003.2(A) through 2003.2(F).

2003.2(A) Eligibility Based on Nationality or Domicile

Section 104(b)(1) of the Copyright Act protects foreign works if, upon the work’s first publication, one or more author(s) of a foreign work (i) is a national or domiciliary of the United States, (ii) is a national, domiciliary, or sovereign authority of a treaty party; or (iii) is a stateless person wherever that person is domiciled.

A “sovereign authority” is a governmental agency or subdivision of a foreign nation, such as a ministry of the government of Norway or a province of Canada. A “stateless person” is a person who has no nationality, either as the result of never having acquired nationality in any nation, or as the result of having effectively renounced or having been deprived of his or her former nationality without having, as yet, become a national of another nation.

Chapter 1900 generally discusses the concept of when a work is published. The concept of “first publication” is further defined in Section 104(b) of the Copyright Act, which explains that “a work that is published in the United States or a treaty party within thirty days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be.”

This means that a foreign work may be eligible for copyright protection in a wide variety of cases. Aside from U.S. nationals and domiciliaries, authors who are nationals or domiciliaries of any treaty party at the time of first publication can obtain U.S. protection for their foreign works. As discussed in Section 2004, the United States has treaty relations with all but a handful of countries, meaning that the majority of foreign works will be eligible for protection under Section 104(b) of the Copyright Act.

2003.2(B) Eligibility Based on Location of First Publication

Section 104(b)(2) of the Copyright Act affords protection to all works that are first published in (i) the United States or (ii) a foreign nation that, on the date of the first publication, is a treaty party. In other words, regardless of the nationality or domicile of the author(s), a work may be eligible for protection under the Copyright Act if it is first published in the United States or in any nation that has a relevant treaty with the United States at the time of the first publication. For more information on which countries are treaty partners, see Section 2004.

2003.2(C) Eligibility for Sound Recordings

Section 104(b)(3) of the Copyright Act provides for protection for sound recordings that were first fixed in a treaty party. A “fixed” sound recording is one that has been embodied in a phonorecord and is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 17 U.S.C. § 101 (definition of “fixed”). For more information on fixation, see Chapter 300, Section 305 and Chapter 800, Section 803.4.

2003.2(D) Eligibility Based on Incorporation into Buildings or Other Structures

Section 104(b)(4) of the Copyright Act protects pictorial, graphic, or sculptural works that are incorporated into a building or other structure, and architectural works that are embodied in a building. The Copyright Act, however, only protects pictorial, graphic, sculptural, and architectural works if the building or structure in which they are incorporated or embodied is located in the United States or a treaty party.

2003.2(E) Eligibility of Works Published by the United Nations or the Organization of American States

Section 104(b)(5) of the Copyright Act states that works first published by the United Nations (or any of its specialized agencies) or by the Organization of American States are eligible for protection under the Copyright Act. This provision is based on first publication by these organizations, regardless of the location of the publication.

2003.2(F) Eligibility Based on Presidential Proclamations

Section 104(b)(6) of the Copyright Act protects works that come within the scope of Presidential proclamations. This means that, in addition to the categories listed in Sections 2003.2(A) through 2003.2(E), a work may be eligible for protection in the United States if the President finds that a particular foreign nation extends copyright protection to works by nationals or domiciliaries of the United States or works that are first published in the United States “on substantially the same basis as that on which the foreign nation extends protection to works of its own nationals and domiciliaries and works first published in that nation.” 17 U.S.C. § 104(b)(6). In such cases, the President may issue a proclamation that extends copyright protection “to works of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that [foreign] nation, or which was first published in that nation.” Id. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under a proclamation.

2004 Treaties and Presidential Proclamations

U.S. protection of foreign works often is based on the United States’ treaty relationships with other countries. The United States has treaty relationships with all but a handful of countries, as set forth in Circular 38(a), International Copyright Relations of the United States (www.copyright.gov/circs/circ38a.pdf). Some of these treaties are multilateral, meaning that there are more than two parties to the treaty, while other treaties are bilateral, meaning that they are between just the United States and one foreign country. It is important to note the date on which a foreign country became a treaty party, because U.S. law will apply only to works either created or first published (depending on which type of eligibility is used) on or after the date that the foreign country became a treaty party. Additionally, for a treaty to confer eligibility, it must apply to the work at issue. For example, an author of a literary work could not rely on the existence of a copyright treaty that protects only satellite broadcasts but not literary works.

2004.1 Multilateral Treaties

The United States is a party to a number of multilateral copyright treaties, including the following:

• Buenos Aires Convention of 1910: This was an early treaty that provided certain copyright protections for artistic and literary works and was deposited with the government of Argentina on May 1, 1911, and proclaimed by President Woodrow Wilson on July 13, 1914.
• Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”): This treaty provides protection for certain literary and artistic works and has been signed by most countries. The effective date for U.S. adherence to the Berne Convention is March 1, 1989.
• Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, Geneva, 1971: The effective date for the United States is March 10, 1974. Note that only sound recordings are eligible for U.S. copyright protection based on this treaty. 17 U.S.C. § 104(d).
• Universal Copyright Convention, Geneva, 1952: This treaty protected certain literary, artistic, and scientific works. The effective date for the United States is September 16, 1955, the date the treaty entered into force. This treaty was revised, and the United States is a party to the version as revised at Paris in 1971 as of July 10, 1974.
• World Intellectual Property Organization (“WIPO”) Copyright Treaty (“WCT”): The WCT is a special agreement under the Berne Convention that protects Berne Convention-covered works and includes specific language protecting computer programs and compilations of data or other material. The effective date for the United States is March 6, 2002, the date the treaty entered into force.
• WIPO Performances and Phonograms Treaty, Geneva, 1996 (“WPPT”): The WPPT covers certain rights for performers and producers of phonograms. The effective date for the United States is May 20, 2002, the date the treaty entered into force. Note that only sound recordings are eligible for U.S. copyright protection based on this treaty. 17 U.S.C. § 104(d).
• The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) was entered into as part of the World Trade Organization (“WTO”), established pursuant to the Marrakesh Agreement of April 15, 1994, which implemented the Uruguay Round Agreements. TRIPS incorporated the Berne Convention in most part, covered copyright and other intellectual property rights, and included provisions relating to enforcement of intellectual property rights. The effective date of United States membership in the WTO is January 1, 1995.

For information concerning the other countries that are parties to these treaties and the date upon which a country became a treaty party, see Circular 38(a), International Copyright Relations of the United States (www.copyright.gov/circs/circ38a.pdf).

2004.2 Bilateral Copyright Treaties and Presidential Proclamations

The United States has entered into bilateral treaties with some foreign countries. These treaties often are in addition to multilateral treaties and try to provide a further layer of protection. For a list of specific U.S. bilateral treaties, see Circular 38(a), International Copyright Relations of the United States (www.copyright.gov/circs/circ38a.pdf).

Additionally, there have been numerous Presidential proclamations throughout the years specifying countries to which the United States has extended copyright law protection. Presidential proclamations were especially common prior to the United States’s adherence to the Berne Convention, which allowed the United States to provide protection to foreign works more easily. These proclamations are included as part of the “bilateral” agreements listed in Circular 38(a).

2005 Registration Issues

This Section discusses frequent registration issues that arise in connection with foreign works.

2005.1 Multiple Authors of a Foreign Work

If the foreign work was created by multiple authors and if eligibility is based on the domicile or nationality of those authors, the work will be eligible for registration as long as any one of the authors’ nationalities or domiciles is sufficient. For example, if the work was created by three authors, two of whom are from Iran (a country that has no copyright treaties with the United States) and one of whom is from France (a country that does have copyright relations with the United States), the work would be eligible for registration.

2005.2 Authors with Multiple Nationalities

If a work’s eligibility is based on the author’s nationality and the author has more than one nationality (for example, if the author has dual citizenship), the work will be eligible for registration if either of the author’s nationalities satisfy the Copyright Act’s eligibility requirements.

2005.3 Domicile or First Publication in the Territorial Areas of the United States

Domicile or first publication in any of the territorial areas under the jurisdiction of the U.S. government — other than the several states, the District of Columbia, and the Commonwealth of Puerto Rico, and the organized territories — does not confer eligibility for registration. Such areas include the unorganized territories, the trust territories, and other possessions of the United States. However, works by domiciliaries of, or works first published in, these areas may be eligible on the basis of the nationality of the author. Since U.S. nationals include persons born in the outlying possessions of the United States, eligibility in such cases may be conferred on that basis.

2005.4 Stateless Persons

A work by a stateless author is eligible for registration with the U.S. Copyright Office regardless of the author’s former or prospective nationality or domicile, and regardless of the place of first publication of the work. 17 U.S.C. § 104(b)(1).

2005.5 Works Made for Hire

In the case of a work made for hire, it is the nationality or domicile of the employer or other person for whom the work was prepared, rather than the nationality or domicile of the employee, which serves as the basis for determining eligibility for registration.

2005.5(A) Nationality and Domicile of Corporations and Similar Organizations

In the case of a work made for hire, where the employer or other person for whom the work was prepared is not a natural person, but is an artificial person or legal entity such as a corporation or similar organization, the nationality and domicile of that organization is usually considered to be the nation under the laws of which the organization was created for purposes of copyright registration. For example, the nationality and domicile of a corporation generally should be stated as the United States if it was incorporated under the law of one of the several States, under federal law, or under the law of the District of Columbia, the Commonwealth of Puerto Rico, or those organized territories under the jurisdiction of the United States that have the power to create corporations.

2005.5(B) Members

A corporation or similar organization is ordinarily considered by law to be separate and distinct from the persons who are its members or shareholders. As a result, the nationality or domicile of the organization may be different from that of its members or shareholders.

2005.5(C) Doing Business

A corporation may do business in a particular nation without being a national or domiciliary of that nation.

2005.6 Anonymous and Pseudonymous Works

Where eligibility depends on the nationality or domicile of the author, the applicant must provide that information in the application, even if the work is anonymous or pseudonymous. The applicant does not, however, have to identify the author’s name in such cases.

For a definition and general discussion of anonymous and pseudonymous works, see Chapter 600, Sections 615.1 and 615.2.

2005.7 Compilations and Derivative Works

The nationality or domicile of the author of a compilation or derivative work is used in determining eligibility for registration, rather than the nationality or domicile of the author(s) of the preexisting material used in that work.

2005.8 When Is Eligibility Determined?

If eligibility must be based on the author’s nationality or domicile, the author’s nationality or domicile and the status of the author’s country must be assessed as of the date of first publication.

2005.8(A) Works Initially Registered as Unpublished, but Ineligible for Registration as Published Works

Even though a work may have been registered as unpublished, it must be eligible at the time of first publication to be registrable as a published work. For example, if the author is a national and domiciliary of Iraq (a nation with which the United States has no copyright relations), the U.S. Copyright Office will register the work if it is unpublished. If the work is later published in another country with which the United States does not have copyright treaty relations, and the author’s citizenship and domicile remain unchanged, the Office will refuse to register the claim in the published version.

2005.8(B) Change in Nationality or Domicile after Publication

If a work was eligible for registration at the time of first publication on the basis of the author’s nationality or domicile, changes in nationality or domicile occurring after that time will not impact the work’s eligibility.

2005.9 Eligibility Unclear

Sometimes the status of copyright relations between the United States and a particular nation is unclear. In cases where eligibility depends on the existence of copyright relations with that country, but the relationship is unclear, the U.S. Copyright Office will refuse registration.

2006 Application Tips for Foreign Works

In most cases, eligible foreign works may be registered just like any other work. In other words, an applicant generally may submit an application using the electronic registration system and selecting the type of work at issue (e.g., literary work, work of the performing arts, work of the visual arts, sound recording, or single serial issue) or by using a paper application (e.g., Form TX, PA, VA, SR, SE, etc.). For specific guidance on how to complete these applications, see Chapter 600 (Examination Practices). There are, however, some foreign works that must be registered with a paper application submitted on Form GATT. These works typically were created or published before 1996 and are known as “restored works,” which are discussed in Section 2007 below.

In all cases, the applicant should provide the name of the nation of which the author is a national or domiciliary, and in the case of a published work, the name of the nation of Chapter 2000: 12 12/22/2014 first publication of the work. For guidance in identifying the author’s nationality or domicile, see Chapter 600, Section 617. For guidance in identifying the nation of first publication, see Chapter 600, Section 612.

Generally, the U.S. Copyright Office will not accept an application that lists a territory or other political subdivision, rather than the name of the nation itself.

Examples of acceptable statements:

• Great Britain
• England
• Wales
• France
• French
• Switzerland
• Swiss

Examples of unacceptable statements:

• British Protected Person
• Commonwealth Citizen
• Worldwide
• Internet

2007 Restored Works

2007.1 What Is a Restored Work?

Previously, U.S. federal copyright protection was not automatic upon fixation, as it is now. Instead, copyright owners needed to take certain steps, such as including specific copyright notices on works and renewing their registrations at particular times. These types of requirements generally are called “formalities” and they applied to both U.S. and foreign works.

In 1978, the current Copyright Act went into effect and eliminated some of these requirements. Later, the United States became a member of the Berne Convention and enacted the Uruguay Round Agreements Act, Pub. L. No. 103–465, 108 Stat. 4809 (codified in scattered sections of the U.S.C.) (1994) (“URAA”), which implemented the United States’ obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights. This further relaxed some of the Copyright Act’s more restrictive provisions and provided copyright protection for many works that may not have been eligible for protection under prior law.

As part of this process, foreign works that previously did not warrant U.S. copyright protection because of a failure to comply with formalities were “restored” by the URAA in 1994. In other words, the URAA provided retroactive copyright protection to many foreign works that were not eligible for protection under prior law.

Section 104A(h)(6) of the Copyright Act provides a precise definition of a “restored work” and specifies the specific requirements — all of which must be satisfied — to qualify as a “restored work”:

• Not in the public domain in the source country: The work must not be in the public domain in its source country through the expiration of the term of protection. 17 U.S.C. § 104A(h)(6)(B). As discussed in Chapter 100, Section 102.2(A), the term of protection is the length of time during which a work is protected by copyright law. As discussed in Chapter 300, Section 313.6(D), the term “public domain” means that the work is not protected by copyright law. Thus, restored works must be copyright- protected and still within their term of protection in the foreign country.
• Fell into the public domain in the United States: The work must be in the public domain in the United States because (i) the work did not comply with prior formalities (such as failing to renew the registration, provide proper notice, or comply with manufacturing requirements under prior law); (ii) the work was not protected by U.S. copyright law in the case of sound recordings fixed before February 15, 1972; or (iii) of a lack of national eligibility (as discussed above generally). 17 U.S.C. § 104A(h)(6)(C).
• Eligibility at time of creation or publication: At least one author or rightsholder of the work must have been (i) a national or domiciliary of an eligible country at the time of the work’s creation, or (ii) if published, the work must have been first published in an eligible country and not published in the United States within the thirty-day period following the first publication. 17 U.S.C. § 104A(h)(6)(D).
• Sound recordings: If the source country for the work is an eligible country solely by virtue of its adherence to the WPPT, the restored work must be a sound recording. 17 U.S.C. § 104A(h)(6)(E).

January 1, 1996 is the effective date of restoration of copyright for works from countries that were members of the WTO or the Berne Convention on that date. Most restored works were restored on January 1, 1996, because many countries became members of the WTO or Berne Convention prior to that date. In all other cases, 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.

NOTE: Restored works are subject to a variety of other legal requirements regarding enforcement and remedies. These topics are beyond the scope of this Compendium, which provides information only on the registration procedures for restored works. For more information on restored works, see Circular 38(a), International Copyright Relations of the United States (www.copyright.gov/circs/circ38a.pdf).

2007.2 Registration Requirements for Restored Works

The Copyright Act protects restored works regardless of whether they are registered with the U.S. Copyright Office, although registration does provide various benefits, which are described in Chapter 200, Section 202. This Section provides general Chapter 2000: 14 12/22/2014 information for copyright owners that wish to register their restored works with the Office.

2007.2(A) Form GATT

To register a restored work, an applicant must file a paper application using Form GATT. Applicants cannot use the Office’s electronic registration system to register restored works. Form GATT is designed to request information needed to determine whether a work qualifies as a restored work and complies with U.S. legal requirements.

While many parts of Form GATT are similar to the Office’s other applications, Form GATT requires information that may be different than the information required by other forms because of the differences in how the Copyright Act treats restored works. These issues are discussed in Sections 2007.2(A)(1) through 2007.2(A)(3).

2007.2(A)(1) Author of a Restored Work

When identifying the author of a restored work on Form GATT applicants should be aware of the following issues.

• Timing matters: The applicant must determine whether, at the time the work was created, the author was a national or domiciliary of a country that is now eligible for protection.
• Multiple works: Form GATT may be used to register a single work. It also may be used to register a series of works published under the same title in multiple episodes, installments, or issues during the same calendar year. In such cases, the author of each work in the series and the owner of the U.S. copyright in each work in the series must be the same, although the author and the copyright owner do not need to be the same individual or entity.
• Anonymous works: Form GATT does not allow an applicant to designate the author as anonymous. Applicants may, however, use a pseudonym in the author space as long as the pseudonym follows a legal name.

2007.2(A)(2) Publication of a Restored Work

To be acceptable for a GATT registration, a restored work must have been first published in a foreign country that is now eligible for protection and must not have been published in the United States within thirty days after first publication in that country.

2007.2(A)(3) Owners of U.S. Copyright in a Restored Work

A claim in a restored work may be registered only in the name of the current owner of all U.S. rights in that work.

2007.2(B) Filing Fees

The applicant must submit the correct filing fee to register a restored work. See 37 C.F.R. § 202.3(c). The current fee is set forth in the U.S. Copyright Office’s fee schedule under the heading “Form GATT” (www.copyright.gov/docs/fees.html).

For information concerning the methods for paying the filing fee, see Chapter 1400, Sections 1403.3 through 1403.5.

2007.2(C) Deposit Requirements

For specific deposit requirements for different types of restored works, see Chapter 1500, Sections 1509.1(J) (Literary Works), 1509.2(H) (Works of the Performing Arts), and 1509.3(E)(3) (Visual Art Works).