Citation[edit | edit source]

Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, 4973 (Dec. 8, 1994) (full-text).

Overview[edit | edit source]

The Act was a federal statute that implemented in U.S. law the provisions agreed upon at the Uruguay Round of negotiations of the General Agreement on Tariffs and Trade (GATT).

Legislative history[edit | edit source]

President Bill Clinton sent the bill for the URAA to Congress on September 27, 1994, where it was introduced in the U.S. House of Representatives as H.R. 5110 and in the U.S. Senate as S. 2467. The bill was submitted under special fast-track procedures under which neither chamber could modify it. The House passed the bill on November 29, 1994; the Senate did so on December 1, 1994. President Clinton signed it into law on December 8, 1994.[1]

A number of technical corrections were made to the copyright provisions introduced by the URAA through the Copyright Technical Amendments Act.[2]

Amendments to the U.S. copyright law[edit | edit source]

Title V of the URAA made several modifications to U.S. copyright law. It amended Title 17 ("Copyrights") of the United States Code to include a completely reworded article 104A on copyright restorations on foreign works and to include a new chapter 11, containing a prohibition of bootleg sound and video recordings of live performances. In Title 18 of the U.S. Code, a new article 2319A was inserted, detailing the penal measures against infringements of this new bootlegging prohibition.

Copyright restorations[edit | edit source]

The U.S. had joined the Berne Convention on March 1, 1989, when its Berne Convention Implementation Act of 1988 entered in force. Article 18 of the Berne Convention specified that the treaty covered all works that were still copyrighted in their source country and that had not entered the public domain in the country where copyright was claimed due to the expiration of a previously granted copyright there.[3] Consequently, the U.S. would have had to grant copyright on foreign works that were never copyrighted before in the U.S. But the United States denied this retroactivity of the Berne Convention and applied the rules of the treaty only to works first published after March 1, 1989. Earlier foreign works that were not covered by other treaties and that had until then not been subject to copyright in the U.S. remained uncopyrighted in the United States.

The U.S. faced harsh critique for its unilateral denouncement of the retroactivity of the Berne Convention defined in article 18,and ultimately had to reverse its position.[4] 17 U.S.C. §104A effectively restored the copyrights on foreign works that previously were not copyrighted in the U.S. due to a failure to meet the U.S. formalities (such as not having a copyright notice, or not having been registered with the U.S. Copyright Office, or not having had its copyright renewed) or due to a lack of international treaties between the U.S. and the country of origin of the work. Copyrights on foreign works were only restored if these works were still covered by copyright or neighboring rights in their source countries on January 1, 1996. But if so, the copyright in the U.S. was restored automatically; the restored copyright is subject to the normal U.S. term as if the work had never fallen into the public domain in the United States.[5] If a country on that date was neither a member of the Berne Convention, nor of the WIPO Copyright Treaty, nor of the WIPO Performances and Phonograms Treaty, nor of the World Trade Organization (WTO), copyrights on works from that country were to be restored upon the earliest adherence date of the country to one of these four treaties.[6]

Excepted from the copyright restorations are only foreign works where the copyright was ever owned or administered by the Alien Property Custodian if the restored copyright would be owned by a government or instrumentality thereof.[7]

Administrative procedures[edit | edit source]

The URAA also included in 17 USC 104A administrative procedures for dealing with cases where someone was already and in good faith using a work that had been in the public domain but on which the copyright was restored by the URAA. Such users are called "reliance parties" in 17 U.S.C. §104A. In particular, rights holders had to file a so-called "Notice of Intent to Enforce" (NIE) their restored copyright, or had to inform earlier users of their works of that fact. The NIEs were to be filed at the U.S. Copyright Office and were made publicly accessible.[8]

To enforce a restored copyright against a user who used the work without authorization from the rights holder after the copyright had been restored, no NIE was necessary.[9]

Challenges to the URAA restorations[edit | edit source]

The retroactive copyright restorations of the URAA have been challenged as violating the U.S. Constitution in two cases.

In Golan v. Gonzales, both the CTEA and the copyright restorations of the URAA were attacked as violating the Copyright and Patent clause (article I, §8, cl. 8) of the U.S. Constitution, which gives Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (emphasis added). The plaintiffs claimed that the URAA violated the "limitedness" of the copyright term by removing works from the public domain and placing them under copyright again, and that doing so also did not promote the progress of science or the arts. Furthermore, plaintiffs claimed the URAA violated the First and the Fifth Amendments. These challenges were dismissed by the district court,[10] but the decision was appealed to the 10th Circuit Court of Appeals, which remanded the decision back to the district court, ordering a fresh evaluation of First Amendment constitutionality.[11] On April 3, 2009, Judge Lewis Babcock in the United States Court for the District of Colorado considered the URAA in violation of the First Amendment.[12]

Similar claims were equally dismissed shortly afterwards in a second case.[13]

References[edit | edit source]

  1. Pub. L. No. 103-465, 103d Cong., 2d Sess., 108 Stat. 4809. The URAA became effective on January 1, 1995.
  2. H.R. 672, which became Pub. L. 105-80 in 1997.
  3. Berne Convention, art. 18.
  4. The copyright restoration implemented by the URAA in 17 U.S.C. §104A.
  5. 17 U.S.X. §104A(a)(1)(B).
  6. U.S. Copyright Office, Circular 38b.
  7. 17 U.S.C. §104A(a)(2).
  8. U.S. Copyright Office, Notices of Restored Copyrights.
  9. U.S. Copyright Office, Restoration of Certain Berne and WTO Works,', comment of William F. Patry on p. 35525.
  10. Golan v. Ashcroft, 310 F.Supp.2d 1215 (D. Colo. 2004).
  11. Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007).
  12. Golan v. Gonzalez, Case No. 01-cv-01854-LTB-BNB (D. Colo. June 19, 2008) (full-text).
  13. Luck's Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005) (full-text).

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