Commons:URAA-restored copyrights

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• COM:URAA

The Uruguay Round Agreements Act, or URAA, is an American law that restored copyrights in the United States on foreign works if those works were still copyrighted in the foreign source country on the URAA date. This URAA date was 1 January 1996 for most countries. This means that foreign works became copyrighted in the U.S. even if they had been in the public domain in the U.S. before the URAA date. See also Wikipedia:Non-U.S. copyrights.

Because the constitutionality of this law was challenged in court, Commons initially permitted users to upload images that would have been public domain in the U.S. but for the URAA. However, the constitutionality of the URAA was upheld by the U.S. Supreme Court in Golan v. Holder. After discussion, it was determined that the affected files would not be deleted en masse. There was further discussion about the best method for review of affected files, resulting in the creation of Commons:WikiProject Public Domain. See Commons:WikiProject Public Domain/URAA review.

Following a discussion at Commons:Massive restoration of deleted images by the URAA and a subsequent unsuccessful review of the precautionary principle, it was decided that files nominated for deletion due to the URAA should be evaluated carefully, as should be their copyright status under U.S. and local laws. A mere allegation that the URAA applies to a file cannot be the sole reason for deletion. If the end result of copyright evaluation is that there is significant doubt about the freedom of a file under U.S. or local law, the file must be deleted in line with the precautionary principle.

Background

1. The URAA copyright restoration is fundamentally because the US joined the Berne Convention on 1 March 1989 (w:en:Uruguay Round Agreements Act).
2. Article 18 of the Berne Convention means that when countries join the Convention, any works whose copyright has expired in the joining country but not the source country must have their copyright restored.
3. The U.S. resisted the requirements of Article 18 for several years, but eventually had to restore the copyrights. 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. (w:en:Uruguay Round Agreements Act).

Tests

Tests to check whether the URAA restored copyright.

Preliminary tests

• If the source country is the U.S., the URAA does not apply (however, this does not mean the work is automatically in the public domain in the United States; subsisting copyrights may be an issue). This includes cases of simultaneous publication in the US and elsewhere (defined as publication within 30 days of first publication) - in such cases, the pre-URAA U.S. copyright rules apply to determine U.S. copyright status.
• No works published before 1 January 1929 anywhere in the world are copyrighted in the United States. This is absolute and not changed by the URAA.
• Works not copyrightable in the United States are not affected by URAA restoration. For example, architectural works (i.e. buildings) constructed before 1 December 1990 are not copyrightable in the United States.

Main tests

If the answer to either of these questions is NO, then the URAA does not restore US copyright to foreign works. Otherwise, it does, unless one of the rare exceptions below is met.

1. If published, was the work published in an eligible country (Berne/WTO, excluding the US; use this table) and not published in the United States during the 30-day period following publication in such eligible country?
2. Was the work still in copyright in the source country on the date of restoration? (see table)
   • Usually, but not always, the "source country" is the country of first publication. For something first published on the same day in more than one country, it is the country with the "greatest contacts" with the work. The full definition is at 17 U.S.C. § 104A(h)(8).
   • The URAA date in most cases is 1 January 1996. In some cases, it is later. If in doubt, use 1996.
   • In some cases countries have extended their copyright terms after the relevant URAA date; the copyright term in effect on the URAA date is the one that matters for working out whether a work was in copyright on that date (see w:Wikipedia:Non-U.S. copyrights#Dates of restoration and terms of protection for exceptions).

Exceptions

Exceptions where copyright is not restored. (If you can't show an exception applies, assume it doesn't.)

1. At the time the work was created, did none of the authors or rightsholders have a sufficient connection with (nationality or residency of) any URAA-eligible country?
   • It is rare that you can show to an acceptable standard of evidence that, at the time the work was created, none of the authors or rightholders was a national or domiciliary (resident) of an eligible country (Berne/WTO, excluding the US; use this table). But where you can show it, you can conclude that copyright is not restored.
   • "Eligible country" is determined by present status of country; "national or domiciliary of an eligible country" is determined by the creator status at the time the work was created.
   • Note that the US is not an eligible country, and US nationals resident in the US at the time foreign works are created are disqualified from the URAA restoration (unless dual nationality with a URAA-eligible country is involved).
2. Is the work covered by the wartime "alien property" copyright exception?
   • This is very rare, and can mostly be ignored, but it does exist. Examples include Mein Kampf.

Examples

The US Copyright Office says:

Generally, the U. S. copyright term for works published before January 1, 1978, lasts for 95 years from the year of first publication.

Although sound recordings fixed before 1972 were not then protected by federal copyright, those sound recordings will receive the remainder of the term they would have received had they been protected by such copyright when published. For example, a sound recording published in 1925 will be protected until 2020.

For works published on or after January 1, 1978, the term of copyright is the life of the author plus 70 years.

For example:

A French short story that was first published without copyright notice in 1935 will be treated as if it had both been published with a proper notice and properly renewed, meaning that its restored copyright will expire on 31 December 2030 (95 years after the U.S. copyright would have come into existence).

A Chinese play from 1983 will be protected until 31 December of the 70th year after the year in which its author dies.

A Mexican sound recording first published in Mexico in 1965 will be protected until 31 December 2060.

Frequently Asked Questions

Is there normally any link between the copyright status of a work abroad and in the US?

Normally, no: the URAA link is an exception. The US does not have the rule of the shorter term; the US copyright status of a work is normally entirely separate from its copyright status elsewhere. Works may be PD in the US, but in copyright in their source country, or vice versa.

If a foreign work does not have its copyright restored by the URAA, is it necessarily in the public domain in the US?

No, not necessarily - even foreign works may have satisfied all the necessary US formalities to stay in copyright in the US (independently of whether it's still in copyright in the source country). The URAA is intended to cover foreign works that did not satisfy all the necessary US formalities (or where there was no treaty). See Commons:Subsisting copyright.

Are all foreign works affected?

No:

1. Works published before 1929 are not affected.
2. Works not copyrightable in the US are not affected.
3. Works simultaneously published in the US and abroad (defined as publication in the US within 30 days) are not affected.
4. Works where none of the copyright holders had a sufficient connection with a URAA-eligible country (nationality or residency) at the time the work was created are not affected. See #Exceptions point 1, and note the US is not an "eligible country".
5. Works covered by the wartime "alien property" copyright exception are not affected (see #Exceptions point 2).

All other foreign works have their US copyright restored (according to US rules) if they were still in copyright in the source country (according to source country rules) on the relevant URAA date.

Can I transfer a work protected in the US to a local Wikimedia project?

• Yes, if:

1. The project has local uploads (some projects don't).
2. The project has a fair use policy (some projects have fair use policies, most don't).
3. The work falls within the fair use policy.

Isn't it unlikely that an artist's heirs will enforce a US copyright on their work after the copyright has expired in the source country?

Enforcement of copyright is rare in general due to the cost of filing suit, and many heirs are unaware that they have rights under the URAA in the US. Nevertheless, this has occurred; see Commons:Deletion requests/File:Beit Alpha 1933.jpg. In this case the heir of an Israel author claims rights to a US copyright even after the work had expired in Israel (in this case the US copyright was probably due to recent first publication rather than the URAA, but the principle is the same). The precautionary principle does not permit us to make assumptions about whether copyright holders are likely to enforce their rights—as long as a copyright holder exists and is capable in principle of enforcing their rights, we must either obtain a free license from them or be conservative and exclude the work.