GATT Restoration Teaser

Here is a GATT restoration teaser I have been thinking about for some time. Section 104A restores copyright to foreign works that fell into the public domain in the U.S. for failure to comply with U.S. formalities like lack of notice, lack of renewal, or in some cases for lack of national eligibility. Determining when a work is subject to restoration is governed in part by the definitions on Sections 104A(h)(6) and (8):

(6) The term “restored work” means an original work of authorship that — (A) is protected under subsection (a); (B) is not in the public domain in its source country through expiration of term of protection; (C) is in the public domain in the United States due to — (i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; (ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or (iii) lack of national eligibility; (D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and (E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording.34 ... (8) The “source country” of a restored work is — (A) a nation other than the United States; (B) in the case of an unpublished work — (i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or (ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and (C) in the case of a published work — (i) the eligible country in which the work is first published, or (ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work. If a work's source country is the U.S., there is no restoration. Eligibility for restoration is based on a number of factors, one of which is country of first publication. What is not always clear is when, for U.S. purposes there was a publication. This is the result of case law under the 1909 Act and a reluctance of U.S. judges to throw foreign works in the public domain for failure to comply with U.S. laws of which they probably knew nothing. The Ninth Circuit, as is its wont, addressed the problem in a manner that screws things up entirely. I refer to the Twin Books case, 83 F.3d 1162 (9th Cir. 1996), discussed previously here, which treats a foreign publication as not existing for U.S. purposes; for U.S. purposes, all that matters is first publication in the U.S., an event that could occur years later, and which may or may not involve complying with U.S. formalities.

Here is my GATT problem: Assume there was a first publication in Germany in 1935, without notice and without ever registering or renewing the work in the U.S. Assume that copies were distributed in the U.S. If nothing else occurred, that work would clearly be subject to restoration. Then, however, assume that in 1940, an exact, authorized edition was printed and published in the U.S.. There could be two scenarios here: (1) the 1940 U.S. publication did not comply with all formalities; (2) the 1940 U.S. publication did comply with applicable formalities.

Did the 1940 U.S. edition wipe out the ability of the 1935 German edition to be restored because the source country of the 1940 edition is the U.S.? There is nothing in a literal reading of Section 104A(h)(6) or (8) that says the 1935 work can't be restored because of the 1940 publication, but one could argue that on the date of restoration (which I say is January 1, 1995, but which others say is January 1, 1996) there was nothing to restore because the later 1940 authorized publication trumps the earlier publication. Yet, under a literal reading of the statute, the source country of the 1935 edition is under the statute France, not the U.S., and I think the statute treats the 1940 publication as meaningless since the work was already pd at the time under scenario (1). Under scenario (2), though, the work would have a U.S. copyright and the difference between restoration or not turns merely on the length of copyright (that is, is it measured from 1935 or 1940).


That's one scenario, under a reading of the statute that treats the publication overseas as a publication for U.S. purposes. Here is where Twin Books comes in, since it regards the 1935 publication overseas as a non-publication, and therefore the 1940 as the first publication, the U.S. becomes the country of origin, there is no restoration. That I think would cause the French to cry foul.