[Federal Register Volume 59, Number 219 (Tuesday, November 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28165]


[[Page Unknown]]

[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.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, 1989.2
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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]
BILLING CODE 1410-30-P