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April 27, 2009

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Thank you for your reply, Peter. You write: " Everyone assumes, however, that they [the restored works] are also due the extensions granted during the course of their copyright history." I agree- but only insofar as the normal copyright they'd have gotten didn't expire "naturally" before a particular extension became effective.

I think one has to "replay" copyright history to calculate the term of the restored copyright: initially, a 1919 work would have gotten at most 2 * 28 years, scheduled to expire 1975. But then it would have benefited from the amendments starting in 1962, which prolonged the renewal term until 1976-12-31, and then it would also have profited from 17 USC 304(b) (in its original 1976 wording) extending the whole copyright term to 75 years since the original publication. But that's it; by 1998, these 75 years would have expired. If the restored copyright term starts running at the date of the original publication of the work, a pre-1923 work would not benefit from the 1998 extension, whereas a work published 1923 or later would.

I'm looking forward to learn what your copyright betters have to say on this.

Lupo, thanks for the thoughtful comments. You are quite right to point out that works that had entered the public domain in their home country at the time of the establishment of copyright regulations with the US would not be subject to restoration. It is just one more complicating factor in trying to determine whether a work is in the public domain.

As for why I think these works would get a 95 year terms, I read the law to say that the copyright term is the term at the time of restoration - and not the copyright term at the time of publication. If the latter was the case, then most restored works would have a 56 year term, since that was the possible term at the time of initial publication (two 28 year terms). Everyone assumes, however, that they are also due the extensions granted during the course of their copyright history.

Still, you have led me to believe that I should confirm my reading with some of my copyright betters. I will report back.

Note that most of these countries have a copyright term of 50 years; as far as I can make out, only Andorra and Montenegro have 70 years. For all the other countries, this purported restoration would not concern works of authors who died more than 50 years before the establishment of copyright relations with the U.S.

But I don't quite see why authors from these countries should get a 95-year U.S. term for restored copyrights on their pre-1923 publications. 17 USC 104A says restored copyrights "subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States." I believe the latter part must be read in conjunction with 104A(h)(6)(C), which says the restorations apply only to works that were in the public domain in the U.S. due to failure to conform with U.S. formalities (registration, renewal, and the like), due to being a pre-1972 sound recording, or due to lack of national eligibility.

Consider e.g. a Vietnamese author who published a book in Vietnam in 1919 and who died after 1948. The URAA date for Vietnam is 1998-12-23. Assume the work was still copyrighted in Vietnam on that date. (I don't know what the historic copyright laws of Vietnam -- if such a thing existed at all -- said; if the historic terms in Vietnam were shorter and the current Vietnamese copyright law with its 50-year term did not re-copyright works on which earlier terms had already expired, it's possible that even more works would not be eligible to restoration. Using the current 50-year term gives a worst-case scenario.) Now what copyright term would that work get if its copyright were to be restored by 17 USC 104A? If Vietnam had been an eligible country, and the author had complied with all formalities, he would have gotten at most 75 years. His work would have been quite naturally in the public domain in the U.S. in 1998, when the term extension to 95 years took effect, and hence it would not have benefited from that extension. As a result, 104A might "restore" the work and then immediately put it in the public domain in the U.S. again because its normal U.S. copyright term had already expired. Hence 1923 remains a firm cut-off for public domain works in the U.S.

Anything else would only generate inequalities that are hard to defend. Why should a foreign author get a longer copyright term than a corresponding U.S. author? A U.S. author who published a work in 1919 (and who renewed the copyright) got only at most 75 years... Also, foreign authors from countries who had copyright relations with the U.S. before 1998 would be put at a disadvantage. For instance, a German author who published in 1919 would also only have gotten the 75 years. Why should a Vietnamese author get a longer term?

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