US free trade law with implications for intellectual property
Uruguay Round Agreements Act
![Great Seal of the United States](//upload.wikimedia.org/wikipedia/commons/thumb/5/5c/Great_Seal_of_the_United_States_%28obverse%29.svg/140px-Great_Seal_of_the_United_States_%28obverse%29.svg.png) |
Other short titles
| General Agreement on Tariffs and Trade
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Long title
| An Act to approve and implement the trade agreements concluded in the Uruguay Round of multilateral trade negotiations.
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Acronyms
(colloquial)
| URAA
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Enacted by
| the
103rd United States Congress
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Effective
| December 8, 1994
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Public law
| 103-465
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Statutes at Large
| 108
Stat.
4809
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Titles amended
| 19 U.S.C.: Customs Duties
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U.S.C.
sections created
| 19 U.S.C.
ch. 22
§§ 3501, 3511?3556, 3571?3572, 3581?3592, 3601?3624
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- Introduced
in the House as
H.R. 5110
by
Richard Gephardt
(
D
-
MO
) on September 27, 1994
- Committee consideration
by
House Ways and Means
,
House Agriculture
,
House Education and Labor
,
House Energy and Commerce
,
House Foreign Affairs
,
House Government Operations
,
House Judiciary
,
House Rules
- Passed the House
on November 29, 1994 (288-146,
Roll call vote 507
, via Clerk.House.gov)
- Passed the Senate
on December 1, 1994 (76-24,
Roll call vote 329
, via Senate.gov)
- Signed into law
by President
Bill Clinton
on December 8, 1994
|
|
Golan v. Holder
|
The
Uruguay Round Agreements Act
(
URAA
;
Pub. L.
Tooltip Public Law (United States)
103?465
, 108
Stat.
4809
, enacted
December 8, 1994
) is an
Act of Congress
in the
United States
that implemented in U.S. law the
Marrakesh Agreement
of 1994. The Marrakesh Agreement was part of the
Uruguay Round
of negotiations which transformed the
General Agreement on Tariffs and Trade
(GATT) into the
World Trade Organization
(WTO). One of its effects is to give United States copyright protection to foreign works that had previously been in the
public domain
in the United States.
Legislative history
[
edit
]
U.S. President
Bill Clinton
sent the bill for the URAA to
Congress
on September 27, 1994, where it was introduced in the
House of Representatives
as H.R. 5110
[1]
and in the
Senate
as S. 2467.
[2]
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 as
Pub. L.
Tooltip Public Law (United States)
103?465
.
[3]
The URAA became effective on January 1, 1995.
[4]
A number of technical corrections were made to the copyright provisions introduced by the URAA through the
Copyright Technical Amendments Act
(H.R. 672, which became Pub. L. 105-80) in 1997.
[5]
Amendments to the U.S. copyright law
[
edit
]
Wikisource
has original text related to this article:
Wikisource
has original text related to this article:
Title V of the URAA made several modifications to the
Copyright law of the United States
. 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.
[6]
Copyright restorations
[
edit
]
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.
[7]
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.
[8]
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.
[9]
The U.S. faced harsh criticism for its unilateral denouncement of the retroactivity of the Berne Convention defined in article 18,
[8]
[10]
and ultimately had to reverse its position. The copyright changes implemented by the URAA in 17 USC 104A
[11]
remedied the situation and brought the U.S. legislation in-line with the requirements of the Berne Convention.
[12]
17 U.S.C.
§ 104A
effectively copyrights many foreign works that were never before copyrighted in the U.S.
[13]
The works are subject to the normal U.S. copyright term, as if they had never entered the public domain.
[14]
The affected works are those which were in the public domain either due to a lack of international copyright agreements between the U.S. and the country of origin of the work, or due to a failure to meet U.S.
copyright registration
and
notification
formalities
. Also affected are works which did have previous U.S. copyright, but which entered the public domain due to a failure to renew the copyright. The law defines all of the affected works as "restored works" and the copyright granted to them as "restored copyright", even though many of the works never had U.S. copyright to restore.
Copyright restoration went into effect on January 1, 1996, for works from countries that were, on that date, members of either the Berne Convention, the
World Trade Organization
(WTO), the
WIPO Copyright Treaty
, or, for sound recordings, the
WIPO Performances and Phonograms Treaty
. Copyright restoration for works from other countries went into effect on the earliest adherence date of the country to one of these four treaties.
[15]
Excepted from the copyright restorations are 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.
[16]
Works simultaneously published within the
United States
and a treaty country were also ineligible for restoration, where "simultaneous publication" means "during the 30-day period following its first publication in
the eligible country."
[17]
Administrative procedures
[
edit
]
The URAA also included in
17 U.S.C.
§ 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 that provision.
[18]
In particular, rightsholders had to file a so-called "Notice of Intent to Enforce" (NIE) their restored copyright, or had to inform earlier users of their works (i.e., existing reliance parties) of that fact. The NIEs were to be filed at the U.S. Copyright Office and were made publicly accessible.
[19]
To enforce a restored copyright against a user who used the work without authorization from the rightsholder after the copyright had been restored, no NIE was necessary.
[20]
Challenges to the URAA restorations
[
edit
]
The retroactive copyright restorations of the URAA have been challenged as violating the
Constitution of the United States
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, clause 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 Amendment
. These challenges were dismissed by the
United States Court for the District of Colorado
,
[21]
but the decision was appealed to the
Tenth Circuit Court of Appeals
, which remanded the decision to the district court, ordering a fresh evaluation of First Amendment constitutionality.
[22]
[23]
On April 3, 2009, in the superseding case
Golan v. Holder
, Judge
Lewis Babcock
in the United States Court for the District of Colorado considered the URAA in violation of the First Amendment.
[24]
The court held that URAA Section 514 was substantially broader than necessary to achieve the government interest. By restoring copyright to certain public domain works, and requiring royalty payments and restricting derivative works after one year following restoration, Congress overstepped its constitutional authority and failed to fully protect First Amendment interests of reliance parties in the works.
[25]
[26]
On March 7, 2011, the
Supreme Court
granted a
certiorari
by Golan to hear the case.
[27]
On January 18, 2012, the Supreme Court upheld the URAA in a 6?2 decision. The majority opinion was written by
Justice Ginsburg
and the dissent was written by
Justice Breyer
.
[28]
A second case,
Luck's Music Library, Inc. v. Gonzales,
which only addressed the Copyright and Patent Clause
issue, was dismissed.
[29]
Films previously in the public domain
[
edit
]
The Uruguay Round Agreements Act restored the United States copyrights of a number of well-known films in 1995. Among such titles were
Metropolis
(1927);
[30]
Blackmail
(1929);
[31]
The 39 Steps
(1935);
[31]
and
The Third Man
(1949).
[31]
Metropolis
reentered the public domain 28 years later, in 2023.
See also
[
edit
]
References
[
edit
]
Notes
- ^
U.S.
Library of Congress
:
H.R. 5110 at THOMAS
Archived
2016-01-13 at the
Wayback Machine
. URL last accessed 2007-05-08.
- ^
U.S. Library of Congress:
S. 2467 at THOMAS
Archived
2016-01-13 at the
Wayback Machine
. URL last accessed 2007-05-08.
- ^
Patry, footnote 2.
- ^
Presidential Proclamation 6821
of September 12, 1995 (109
Stat.
1813
): "To Establish a Tariff-Rate Quota on Certain Tobacco, Eliminate Tariffs on Certain Other Tobacco, and for Other Purposes"
- ^
United States:
H.R. 672: Copyright Technical Amendments Act
Archived
2016-07-05 at the
Wayback Machine
, 1997. See also the
House Report 105-25
[
permanent dead link
]
for a discussion. URLs last accessed 2007-05-07.
- ^
U.S. Congress:
URAA, Title V
. URL last accessed 2007-01-30.
- ^
Berne Convention, article 18.
- ^
a
b
Elst p. 491.
- ^
Pilch p. 83.
- ^
Regnier pp. 400ff.
- ^
United States Code
:
17 USC 104A
.
- ^
Pilch p. 84.
- ^
Hirtle
- ^
17 USC 104A(a)(1)(B).
- ^
Circular 38b: Copyright Restoration Under the URAA
(PDF)
, Washington, D.C.:
United States Copyright Office
, January 2013
, retrieved
2013-12-24
- ^
17 U.S.C.
§ 104A(a)(2)
- ^
Circular 38b: Copyright Restoration Under the URAA
(PDF)
, Washington, D.C.:
United States Copyright Office
, January 2013
, retrieved
2015-01-26
- ^
U.S. Copyright Office:
Reliance parties
. URL last accessed 2007-05-07.
- ^
U.S. Copyright Office:
Notices of Restored Copyrights
. URL last accessed 2007-05-07.
- ^
U.S. Copyright Office:
Restoration of Certain Berne and WTO Works
, comment of
William F. Patry
on p. 35525. URL last accessed 2007-05-07.
- ^
U.S.:
Golan v. Ashcroft
310 F.Supp.2d 1215 (D. Colo. 2004)
. URL last accessed 2007-05-08.
- ^
"Golan v. Gonzales"
. The Center for Internet and Society. Archived from
the original
on 2007-05-09.
- ^
U.S. Court of Appeals, 10th Circuit:
Golan v. Gonzales
, September 4, 2007; Docket no. 05-1259. URL last accessed 2007-09-10.
- ^
"URAA Held Unconstitutional"
. The Center for Internet and Society
. Retrieved
2014-03-08
.
- ^
District Court for the District of Colorado, Judge Babcock:
Golan v. Holder
, Memorandum Opinion and Order
, April 3, 2009; Civil Case No. 01-cv-01854-LTB. URL last accessed 2009-11-04.
Archived
October 10, 2009, at the
Wayback Machine
- ^
Ochoa, T.:
Ochoa on Golan v. Holder and Copyright Restoration
, April 6, 2009. URL last accessed 2009-11-04.
- ^
Falzone, Anthony (March 7, 2011).
"Supreme Court grants cert. in Golan v. Holder"
.
The Center for Internet and Technology
. Stanford University
. Retrieved
March 7,
2011
.
- ^
Gagnier, Christina (18 January 2012).
"SCOTUS Adds More Fuel to the Copyright Debate With Golan V. Holder"
.
Huffington Post
. Retrieved
19 January
2012
.
- ^
407 F.3d 1262 (D.C. Cir. 2005). U.S.:
Luck's Music Library, Inc. v. Gonzales
407 F.3d 1262 (D.C. Cir. 2005)
. URL last accessed 2007-05-08.
Archived
September 5, 2006, at the
Wayback Machine
- ^
"Copyright restoration and foreign works: be careful"
. Retrieved
January 13,
2016
.
- ^
a
b
c
Library of Congress, Copyright Office. "
Copyright Restoration of Works in Accordance With the Uruguay Round Agreements Act
",
U.S. Copyright Office
22 August 1997. Retrieved 15 February 2011.
Bibliography
- Elst, M.:
Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation
, Martinus Nijhoff, Leiden/Boston, 2005;
ISBN
90-04-14087-5
.
- Hirtle, P. B.: "
Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status
", in
D-Lib Magazine
14
(7/8)
, July/August 2008.
ISSN
1082-9873
.
- Patry, W. F.
:
Copyright Law and Practice
, 2000 Cumulative Supplement to Chapter 1. Bna Books,
ISBN
0-87179-854-9
. The 2000 Supplement has
ISBN
1-57018-208-6
. URL last accessed 2007-01-30.
- Pilch, J. T.:
Understanding Copyright Law for Slavic, East European, and Eurasian Materials
, in
Slavic and East European Information Resources (SEEIR)
4
(1)
, pp. 75 ? 101; Haworth Information Press 2003.
- Regnier, O.:
Who Framed Article 18? The Protection of pre-1989 Works in the U.S. under the Berne Convention
, p. 400?405 in
European Intellectual Property Review
, 1993.
- U.S. Congress:
Uruguay Round Agreements Act
[
dead link
]
, H.R. 5110, 103d Cong., 2d Sess., became Pub. L. No. 103-465, 108 Stat. 4809
- WIPO
:
Berne Convention for the Protection of Literary and Artistic Works
Archived
2012-09-11 at the
Wayback Machine
... as revised in Paris 1971 and amended in 1979. URL last accessed 2007-01-30.
External links
[
edit
]
Wikimedia Commons has media related to
URAA
.
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Statutes
| Pre-1976
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1970s
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1980s
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1990s
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2000s
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2010s
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2020s
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Precedents
and rulings
| Supreme Court
|
- Wheaton v. Peters
(1834)
- Baker v. Selden
(1879)
- Trade-Mark Cases
(1879)
- Burrow-Giles Lithographic Co. v. Sarony
(1884)
- Banks v. Manchester
(1888)
- Callaghan v. Myers
(1888)
- Bobbs-Merrill Co. v. Straus
(1908)
- White-Smith Music Publishing Co. v. Apollo Co.
(1908)
- Williams & Wilkins Co. v. United States
(1975)
- Sony Corp. of America v. Universal City Studios, Inc.
(1984)
- Feist v. Rural
(1991)
- Campbell v. Acuff-Rose Music, Inc.
(1994)
- Quality King v. L'anza
(1998)
- Eldred v. Ashcroft
(2003)
- MGM Studios, Inc. v. Grokster, Ltd.
(2005)
- Costco Wholesale Corp. v. Omega, S. A.
(2010)
- Golan v. Holder
(2012)
- Kirtsaeng v. John Wiley & Sons, Inc.
(2013)
- American Broadcasting Cos., Inc. v. Aereo, Inc.
(2014)
- Star Athletica v. Varsity Brands
(2017)
- Fourth Estate v. Wall-Street.com
(2019)
- Georgia v. Public.Resource.Org, Inc.
(2020)
- Google LLC v. Oracle America, Inc.
(2021)
- Andy Warhol Foundation v. Goldsmith
(2023)
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Appeals courts
|
- Berlin v. E.C. Publications, Inc.
(2d Cir. 1964)
- Roth Greeting Cards v. United Card Co.
(9th Cir. 1970)
- Eltra Corp. v. Ringer
(4th Cir. 1978)
- Walt Disney Productions v. Air Pirates
(9th Cir. 1978)
- Midway Manufacturing Co. v. Artic International, Inc.
(7th Cir. 1983)
- Apple Computer, Inc. v. Franklin Computer Corp.
(3d Cir. 1983)
- Fisher v. Dees
(9th Cir. 1986)
- Whelan v. Jaslow
(3d Cir. 1986)
- Vault Corp. v. Quaid Software Ltd.
(5th Cir. 1988)
- Rogers v. Koons
(2nd Cir. 1992)
- Computer Associates International, Inc. v. Altai, Inc.
(2d Cir. 1992)
- American Geophysical Union v. Texaco, Inc.
(2nd Cir. 1995)
- Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc.
(9th Cir. 1997)
- Itar-Tass Russian News Agency v. Russian Kurier, Inc.
(2d Cir. 1998)
- Sony Computer Entertainment, Inc. v. Connectix Corp.
(9th Cir. 2000)
- Nunez v. Caribbean Int'l News Corp.
(1st Cir. 2000)
- A&M Records, Inc. v. Napster, Inc.
(9th Cir. 2001)
- Veeck v. Southern Building Code Congress Int'l
(5th Cir. 2002)
- Kelly v. Arriba Soft Corp.
(9th Cir. 2002 / 2003)
- In re Aimster Copyright Litigation
(7th Cir. 2003)
- NXIVM Corp. v. Ross Institute
(2d Cir. 2004)
- BMG Music v. Gonzalez
(7th Cir. 2005)
- Bill Graham Archives v. Dorling Kindersley, Ltd.
(2nd Cir. 2006)
- Blanch v. Koons
(2nd Cir. 2006)
- Perfect 10, Inc. v. Amazon.com, Inc.
(9th Cir. 2006)
- Cartoon Network, LP v. CSC Holdings, Inc.
(2nd Cir. 2008)
- Ahanchian v. Xenon Pictures, Inc.
(9th Cir. 2010)
- Penguin Group (USA) Inc. v. American Buddha
(2d Cir. 2011)
- Monge v. Maya Magazines, Inc.
(9th Cir. 2012)
- Viacom International Inc. v. YouTube, Inc.
(2d Cir. 2012)
- Seltzer v. Green Day, Inc
(9th Cir. 2013)
- Authors Guild, Inc. v. Google, Inc.
(2d Cir. 2015)
- Lenz v. Universal Music Corp.
(9th Cir. 2015)
- Naruto v. Slater
(9th Cir. 2018)
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Lower courts
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