Uruguay Round Agreements Act

The Uruguay Round Agreements Act (URAA) was an Act of Congress in the United States 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

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. 5110U.S. Library of Congress: " [http://thomas.loc.gov/cgi-bin/bdquery/z?d103:h.r.05110: H.R. 5110 at THOMAS] ". URL last accessed 2007-05-08.] and in the Senate as S. 2467.U.S. Library of Congress: " [http://thomas.loc.gov/cgi-bin/bdquery/z?d103:SN02467: S. 2467 at THOMAS] ". URL last accessed 2007-05-08.] 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 Public Law Pub. L. No. 103-465, 103d Cong., 2d Sess., 108 Stat. 4809.Patry, footnote 2.] The URAA became effective on January 1, 1995.Clinton, "Proclamation 6821".] 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.United States: " [http://thomas.loc.gov/cgi-bin/bdquery/z?d105:H.R.672: H.R. 672: Copyright Technical Amendments Act] ", 1997. See also the [http://thomas.loc.gov/cgi-bin/cpquery/?&sid=cp1050zsNS&refer=&r_n=hr025.105&db_id=105&item=&sel=TOC_39416& House Report 105-25] for a discussion. URLs last accessed 2007-05-07.]

Amendments to the U.S. copyright law

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.U.S. Congress: "URAA, Title V". URL last accessed 2007-01-30.]

Copyright restorations

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.Berne Convention, article 18.] 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.Elst p. 491.] 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.Pilch p. 83.]

The U.S. faced harsh critique for its unilateral denouncement of the retroactivity of the Berne Convention defined in article 18,Regnier pp. 400ff.] and ultimately had to reverse its position. The copyright restoration implemented by the URAA in 17 USC 104AUnited States Code: ".] remedied the situation and brought the U.S. legislation in-line with the requirements of the Berne Convention.Pilch p. 84.]

17 USC 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 neighbouring 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 U.S. (104A(a)(1)(B)). 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.U.S. Copyright Office, "Circular 38b".]

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. (17 USC 104A(a)(2))

Administrative procedures

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 USC 104A.U.S. Copyright Office: " [http://www.copyright.gov/docs/reliance.html Reliance parties] ". URL last accessed 2007-05-07.] 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.U.S. Copyright Office: " [http://www.copyright.gov/gatt.html Notices of Restored Copyrights] ". URL last accessed 2007-05-07.]

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.U.S. Copyright Office: " [http://www.copyright.gov/fedreg/1995/60fr35522.html Restoration of Certain Berne and WTO Works] ", comment of William F. Patry on p. 35525. URL last accessed 2007-05-07.]

Challenges to the URAA restorations

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 ColoradoU.S.: [http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/constitutionality/GolanVAshcroft(DColo3-15-04).htm "Golan v. Ashcroft" 310 F.Supp.2d 1215 (D. Colo. 2004)] . URL last accessed 2007-05-08.] , but the decision was appealed to the United States 10th Circuit Court of Appeals, which remanded the decision back to the district court, ordering a fresh evaluation of First Amendment constitutionality. [cite web|url=http://cyberlaw.stanford.edu/case/golan-v-gonzales|title=Golan v. Gonzales|publisher=The Center for Internet and Society] U.S. Court of Appeals, 10th Circuit: " [http://www.ca10.uscourts.gov/opinions/05/05-1259.pdf Golan v. Gonzales] ", September 4, 2007; Docket no. 05-1259. URL last accessed 2007-09-10.]

Similar claims were equally dismissed shortly afterwards in a second case, "Luck's Music Library, Inc. v. Gonzales," 407 F.3d 1262 (D.C. Cir. 2005).U.S.: [http://www.ll.georgetown.edu/federal/judicial/dc/opinions/04opinions/04-5240a.pdf "Luck's Music Library, Inc. v. Gonzales" 407 F.3d 1262 (D.C. Cir. 2005)] . URL last accessed 2007-05-08.]

Notes

References

*Clinton, W. J.: "", September 12, 1995.
*Elst, M.: "Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation", Martinus Nijhoff, Leiden/Boston, 2005; ISBN 9-004-14087-5.
*Patry, W. F.: " [http://digital-law-online.info/patry/patry10.html#_ftn2 Copyright Law and Practice] ", 2000 Cumulative Supplement to Chapter 1. Bna Books, ISBN 0871798549. The 2000 Supplement has ISBN 1570182086. 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: " [http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.45&filename=h5110enr.pdf&directory=/disk3/wais/data/103_cong_bills Uruguay Round Agreements Act] ", H.R. 5110, 103d Cong., 2d Sess., became Pub. L. No. 103-465, 108 Stat. 4809
*U.S. Copyright Office: " [http://www.copyright.gov/circs/circ38b.pdf Circular 38b: Highlights of Copyright Amendments Contained in the URAA] ". URL last accessed 2007-01-30.
*WIPO: " [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html Berne Convention for the Protection of Literary and Artistic Works] "... as revised in Paris 1971 and amended in 1979. URL last accessed 2007-01-30.