Re: Term of Protection Questions

On Fri, 7 Nov 2003, Bernard Katz wrote:

> Two recent questions about term of protection have been raised on this
> list: re unpublished letters in the UK, and French works from 1900 and
> 1950 - presumably published in those years. In both cases use of these
> works was to lead to publication in the United States. Surely the real
> question then is what does the US Act have to say about such works - not
> the UK or french laws.

That's mostly true. However, those who are considering publication in the US of works of foreign origin should be careful about copyright restoration, and how that is affected by foreign laws regarding copyright term, including those of the UK and France.

Most works of foreign origin, if they lose U.S. copyright for certain reasons, will have copyright restored. The reasons include lack of formality (copyright notice, renewal, etc.), lack of prior national eligibility (i.e., the nation of origin and the U.S. formerly were not party to a mutual copyright treaty or agreement, but now are), or, in the case of sound recordings, due to lack of US recognition of sound recording copyright prior to 1972. If such a foreign work goes PD due to one of these reasons, its copyright is restored under section 104A.

The reason it's important to look at foreign law is that 104A is applicable only if the work's copyright has not expired in its source country. So foreign term of copyright is actually a pretty critical thing to look at here.

I say "most works of foreign origin" above, and that's a bit of a gloss; the formal requirements are in the definitions section of 104A, based on nationality of authorship and/or country of first publication. The nations covered are basically any country that's part of Berne, the WCT or the WPPT, or a member of the WTO. That covers most countries most people are considering republishing works from, and includes France and the UK.

So, say a letter by a French author is published in the US in 1950 without notice. It would lose its copyright in the US upon publication. However, when 104A was added in its present form (the present version was added by the URAA in 1994, replacing a 1993 NAFTA addition that we can pretty much ignore), that French work in 1994 popped out of the public domain and became again protected by U.S. copyright -- but only because (I believe) it was still under copyright under French law, which did not require a copyright notice even in 1950.

-- 
Terry Carroll
Santa Clara, CA
carroll[_at_]tjc.com