Compendium of US Copyright Office Practices, II (1984)/1100
Chapter 1100
ELIGIBILITY
Outline of Topics
1101Applicability of this chapter.
1101.01Sound recordings.
1102Definitions.
1102.01Author.
1102.02Domicile.
1102.03First publication.
1102.04National.
1102.05Producer of phonograms.
1102.06Sovereign authority of a foreign nation.
1102.07Stateless.
1102.08United States.
1102.09Universal Copyright Convention.
1103Statutory provisions.
1103.01Unpublished works.
1103.02Published works.
1103.03Copyright law extended to certain territories.
1104Multilateral copyright treaties to which the United States is a party.
1104.01Mexico City Convention of 1902.
1104.02Buenos Aires Convention of 1910.
1104.03Universal Copyright Convention.
1104.04Phonogram Convention.
1105Presidential proclamations.
1105.01Proclamations issued under the current Act.
1105.02Continuance of earlier proclamations.
1105.03Coverage of earlier proclamations.
1106Existence of copyright relations unclear.
1107Copyright Office policy.
1108Authors: particular situations.
1108.01More than one author.
1108.02More than one nationality.
1108.03Work made for hire.
1108.04Nationality and domicile of corporations and similar organizations.
1108.05Compilations and derivative works.
1108.06Stateless.
1108.07United States
1108.08Territorial areas of the united States.
1108.09Anonymous and pseudonymous works.
1108.09First publication after death of author.
1109Time when eligibility is determined.
1109.01Registered as unpublished: ineligible when published.
1109.02Change in nationality or domicile after publication.
1109.03Works distributed only in the form of phonorecords before 1978.
1110Acceptable statements of nationality, domicile, and nation of first publication.
1111Some general examples illustrating basic principles.
Chapter 1100
ELIGIBILITY
1101
Applicability of this chapter. This chapter concerns the registrability of works under the provisions of the copyright law relating to national origin. This chapter is applicable to unpublished works, whenever created, and to works published on or after January 1, 1978. Compendium I should be consulted for an explanation of practices concerning eligibility for works, other than sound recordings, published before January 1, 1978.
1101.01
Sound recordings. In general, this chapter applies to sound recordings as well as to other works. However, sound recordings whose eligibility for u.s. copyright protection depends solely upon the provisions of the Universal Copyright Convention (UCC) are not registrable. Regarding the DCC, see sections 1102.09 and 1104.03 below.
1102
Definitions. The following are definitions of terms used in this chapter.
1102.01
Author. The "author" is the person who prepared the material covered by the copyright claim except that in the case of a work made for hire, the employer or other person for whom the work was prepared, is considered to be the author. Thus, where a work is made for hire, it is the nationality or domicile of the employer or other person for whom the work was prepared, rather than the nationality or domicile of the employee, which may serve as a basis for determining eligibility for registration.
1102.02
Domicile. "Domicile" is the place where a person has a fixed and permanent residence with an intention to continue that residence for an unlimited time and to which such person, whenever absent, has the intention of returning. Mere residence is not the equivalent of "domicile," and therefore cannot serve as a basis for determining eligibility.
1102.03
First publication. The date of "first publication" is the earliest date on which, by authority of the copyright owner, (a) copies or phonorecords of a work are distributed to the public by sale or other transfer of ownership, or by rental, lease, or lending, or (b) an offer is made to distribute copies or phonorecords to a group of persons for further distribution, public performance, or public display. If a work is first published on the same date in more than one country, ordinarily the application for registration may give the name of any such country as the nation of first publication of the work. However, if one of the countries is the United States, the application should give "United States" as the nation of first publication. The Copyright Office will generally not question a statement in an application giving, as the nation of first publication, a country which is one of those where first publication provides a basis for eligibility, even though the Office is informed that the work was also first published on the same date in one or more other countries where first publication would not offer a basis for eligibility.
1102.04
National. In general, the term "national" means (a) a citizen of a nation, or (b) a person who, although not a citizen, nevertheless owes permanent allegiance to a nation. Citizens of the United States are those persons who are citizens in accordance with the U.S. Constitution or Federal statutes, including persons born in Guam, the U.S. Virgin Islands, and Puerto Rico; certain persons are by Federal statute nationals but not citizens of the United States, including persons born in the outlying possessions of the United States; in addition, all U.S. citizens are also nationals of the United States. See 8 U.S.C. 1101.
1102.05
Producer of phonograms. The "producer of a phonogram" is the person who, or the legal entity which, first fixes the sounds of a performance or other sounds. Article l(b), Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, 25 U.S.T. 309, 325, T.I.A.S. No. 7808 (Done at Geneva Oct. 29, 1971: entered into force in the United States Mar. 10, 1974).
1102.06
Sovereign authority of a foreign nation. A "sovereign authority of a foreign nation" is a governmental agency or subdivision of
a foreign nation, e.g., a ministry of the government of Norway, or a province of Canada.1102.07
Stateless. A stateless person is a person who has no nationality, either as the result of never having acquired nationality in any nation, or as the result of having effectively renounced or having been deprived of his or her former nationality without having, as yet, become a national of any nation.
1102.08
United States. The "united States," when used in a geographical sense, comprises the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government. 17 U.S.C. 101.
1102.08(a)
Organized territories. The "organized territories under the jurisdiction of the United States Government" are those or which the Congress has provided organic acts which serve the same purpose as do the constitutions of the States. The organized territories include Guam and the U.S. Virgin Islands.
1102.08{b)
Other territorial areas. Other territorial areas under the jurisdiction of the U.S. Government include: (a) the unorganized territories such as American Samoa, (b) trust territories such as the Trust Territory of the Pacific Islands, and (c) other possessions such as numerous small islands. Since the status of a number of the territorial areas which at present are not among the organized territories is in the process of being changed (such as the status of the Northern Mariana Islands), consultation with other u.s. Government agencies or further study by the Copyright Office may be necessary when registration of a work depends upon the status of such an area.
1102.09
Universal Copyright Convention. The Universal Copyright Convention UCC) is a multilateral treaty on copyright to which the United States and a considerable number of other nations have adhered. The original version of the Convention, done at Geneva, entered into force September 16, 1955. The revised version, done at Paris, entered into force July 10, 1974. Since the United States is a party to both versions, adherence by a foreign nation to either version may serve as the basis of eligibility for protection under the provisions of the U.S. copyright law relating to national origin. See also section 1104.03 below. Concerning sound recordings, see section 1101.01 above.
1103
Statutory provisions. The following are the statutory provisions which establish eligibility. If a work is eligible under any of these provisions, the fact that it fails to meet any or all of the others will not prevent registration.
1103.01
Unpublished works. The work of any author, while unpublished, is eligible for registration as an unpublished work without regard to such author's nationality or domicile. See 17 U.S.C. 104(a).
1103.02
Published works. The work of any author published on or after January 1, 1978, is eligible for registration as a published work only if it meets at least one of the following conditions.
1103.02(a)
U.S. national or domiciliary. On the date of first publication, one or more of the authors is a national or domiciliary of the United States. 17 U.S.C. 104(b)(1).
1103.02(b)
Foreign national or domiciliary. On the date of first publication, one or more authors is a national, domiciliary, or sovereign authority of a foreign nation which is a party to a copyright treaty to which the United States is also a party. 17 U.S.C.104(b)(1). See section 1104 below.
1103.02(c)
Stateless person. On the date of first publication, one or more of the authors is a stateless person, wherever that person may be domiciled. 17 U.S.C. 104(b)(1).
1103.02(d)
First publication in the United States. The work is first published in the united States. 17 U.S.C. 101 and 104(b)(2)
1103.02(e)
First publication in a UCC country. The work is first published in a foreign nation that, on the date of first publication, is a party to either the Geneva or Paris text of the Universal Copyright Convention (UCC). 17 U.S.C. 104(2). See section 1104.03 below.
1103.02(f)
United Nations or the Organization of American States. The work is first published by the United Nations or any of its specialized agencies, or by the organization of American States. 17 U.S.C. 104(b)(3). NOTE: There is no requirement, as a basis for eligibi lity, that one of these organizationsbe the author, copyright claimant, or copyright owner, but only that the work be first published by one such organization.
1103.02(g)
Presidential proclamation. The work comes within the scope of a Presidential proclamation. 17 U.S.C. 104(b)(4). See section 1105 below.
1103.03
Copyright law extended to certain territories. The U.S. copyright law has been extended by specific statutory enactments to Guam, 48 U.S.C. 1421n; the U.S. Virgin Islands, 48 U.S.C. 1405q; and the Northern Mariana Islands, 48 U.S.C. 1681, together with the Act of Mar. 24, 1976, Pub. L. 94-241, 90 Stat. 263, and Presidential Proclamation No. 4534, 42 Fed. Reg. 56593 (1977).
1104
Multilateral copyright treaties to which the United States is a party. The following are multilateral copyright treaties to which the United States is a party.
1104.01
Mexico City Convention of 1902. This treaty was superseded by the Buenos Aires Convention of 1910 with regard to all members except El Salvador. The copyright law extends eligibility to works by nationals or domiciliaries of El Salvador through this treaty. NOTE: In addition to being a party to the Mexico City Convention, effective June 30, 1908, El Salvador also became a party to both the Geneva and the Paris texts of the .Universal Copyright Convention, effective March 29, 1979, and to the Phonogram Convention, effective February 9, 1979. See sections 1104.03 and 1104.04 of this chapter.
1104.02
Buenos Aires Convention of 1910. The copy right law extends eligibility to works by nationals or domiciliaries of nations which are parties to this treaty. Such works must satisfy all of the legal and formal requirements of title 17, U.S.C.
1104.03
Universal Copyright Convention. The copyright law extends eligibility to works by nationals or domiciliaries of nations that are parties to this Convention, and to works first published in such nations. Member nations may be parties to the Geneva text only, or to both the Geneva and Paris texts. See section 1102.09 above. Concerning sound recording, see section 1101.01 above.
1104.04
Phonogram Convention. The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms provides, in Article 2 thereof, that each "Contracting State shall protect producers of phonograms who are nationals of other Contracting States" " 25 U.S.T. 309, 325~ T.l.A.S. No. 7808. Where the producer who is an author of a sound recording is a national of a nation that is a member of this Convention, the copyright law extends eligibility to that work. See also section 1102.05 above.
1105
Presidential proclamations. Presidential proclamations are governed by the following provisions:
1105.01
Proclamations issued under the current Act. The president of the united states may by proclamation extend U.S. copyright protection to works of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of a foreign nation as to which such proclamation has been issued, or to works which were first published in such a nation. See 17 U.S.C. 104(b)(4): see also section 104, Transitional and Supplementary Provisions of the current Act.
1105.02
Continuance of earlier proclamations. The current law provides that all proclamations issued by the President under section 1(e) or 9(b) of title 17 as it existed on December 31, 1977, or under previous copyright statutes of the United States, shall continue in force until terminated, suspended, or revised by the President. See section 104, Transitional and Supplementary Provisions of the current Act.
1105.03
Coverage of earlier proclamation. Presidential proclamations issued before January 1, 1978, extend eligibility only to the works of authors who were a "citizen or subject" of a proclaimed nation. Such proclamations confer no eligibility on the basis of domicile or publication in a proclaimed nation. See 17 U.S.C. 1(e) and 9(b), as it existed on December 31, 1977: see also section 13 of the Act of March 3, 1891, 26 Stat. 1106.
1106
Existence of copyright relations unclear. In some instances the status of copyright relations between the United States and a particular nation is unclear. Registration will be refused in any case where eligibility depends upon the existence of copyright relations with that nation. See also section 1109 below.
1107
Copyright Office policy. In general, the nationality, domicile, or nation of first publication given by the applicant will be accepted at face value unless it is clearly inconsistent with facts stated by the applicant or with information of which the Copyright Office has knowledge. The Copyright Office generally does not attempt to settle questions of nationality or domicile.
Examples:
1)
An application stating that the author is a U.S. national will be questioned where the accompanying letter indicates that he or she has applied for citizenship, but has not yet been naturalized.
2)
An application stating that a currently prominent European statesman is domiciled in the United States will be questioned.
1108
Authors: particular situations. For published works, the nationality or domicile of the author may determine eligibility for registration. Special situations include the following:
1108.01
More than one author. The "author" whose nationality or domicile is determinative in a particular case may be the author who prepared only a portion of the material covered by the copyright claim, and this may suffice to extend eligibility to all the material covered by the claim regard less of the nationality or domicile of the other authors.
1108.02
More than one nationality. If the author of the work covered by the copyright claim has more than one nationality and if any such nationality confers eligibility, registration can be made.
1108.03
Work made for hire. In the case of a work made for hire, it is the nationality or domicile of the employer or other person for whom the work was prepared, rather than the nationality or domicile of the employee, which may serve as a basis for determining eligibility for registration. See section 1102.01 above.
1108.04
Nationality and domicile of corporations and similar organizations. In the case of a work made for hire, where the employer or other person for whom the work was prepared is not a natural person but is an artificial person or legal entity, such as a corporation or similar organization, the nationality and domicile of such an organization, for copyright registration purposes, is usually considered to be that of the nation under the laws of which it was created. Thus, the nationality and domicile of a corporation should generally be stated as the United States, if it was incorporated under the law of one of the several States, under Federal law, or under the law of the District of Columbia, the Commonwealth of Puerto Rico, or those organized territories under the jurisdiction of the United States which have the power to create corporations.
1108.04(a)
Members. A corporation or similar organization is ordinarily considered by law to be separate and distinct from the persons who are its members or shareholders, so that the nationality or domicile of such organization may be different from that of such members or shareholders.
1108.04(b)
Doing business. A corporation may do business in a particular nation without being a national or domiciliary of that nation.
1108.05
Compilations and derivative works. The nationality or domicile of the author of the compilation or derivative work rather than the nationality or domicile of the author(s) of the preexisting material used in the work determines eligibility for registration.
1108.06
Stateless. A work of a stateless author is eligible regardless of the author's former or prospective nationality or domicile, and regardless of the place of first publication of the work. See section 1102.07 above.
1108.07
United States. A work of a U.S. national is eligible regardless of his or her domicile or the place of first publication. Where an author of a work is domiciled in the United States or the work is first published in the United States, it is eligible for registration regardless of the author's nationality. See sections 1102.03, 1102.04, and 1102.08 above.
1108.08
Territorial areas of the United States. Domicile or first publication in any of the territorial areas under the jurisdiction of the U.S. Government, other than the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories, does not confer eligibility for registration: such areas include the unorganized territories, the trust territories, and other possessions of the United States. See section 1102.08 above. However, works by domiciliaries of, or first published in, these areas may be eligible on the basis of the nationality of the author: and since U.S. nationals include persons born in the outlying possessions of the United States, eligibility in such cases may be conferred on this basis. See section 1102.04 above.
1108.09
Anonymous and pseudonymous works. Where eligibility depends on the nationality or domicile of the author, that information must still be given on the application for registration even though the work is anonymous or pseudonymous. However, the identity of the author does not have to be stated in such cases.
1108.10
First publication after death of author. Where a work is first published after the author's death, the Copyright Office will make registration if, at the time of death,the author's nationality or domicile would have conferred eligibility. In no case where a work is first published after the authors death can the nationality or domicile of the copyright claimant serve as the basis for eligibility.
1109
Time when eligibility is determined. Where eligibility must be based on the nationality or domicile of the author, it is the author's nationality or domicile and the status of the author's country on the date of first publication that are determinative. See section 1108.08, above, for an exception in the case of works first published after the death of the author.
1109.01
Registered as unpublished: ineligible when published. Even though a work may have been registered as unpublished, it must be eligible at the time of first publication to be registrable as a published work.
Example:
The author is a national and domiciliary of Iraq, a nation with which the United States has no copyright relations. The work is registered in unpublished form. If that work is later published in a non-UCC country, and the author's citizenship and domicile remain unchanged, registration of the claim in the published version should be refused.
1109.02
Change in nationality or domicile after publication. If a work was eligible for registration at the time of first publication on the basis of the author's nation ality or domicile, changes in nationality or domicile occurring after that time are not determinative for this purpose.
1109.03
Works distributed only in the form of phonorecords before 1978. Where musical, dramatic or literary works were publicly distributed before January 1, 1978, only in the form of phonorecords, registration cannot be made for these works as published works. However, if distribution of the phonorecords continued on January 1, 1978, registration for the underlying works can be made under the current law as published works. In such cases the date of first publication is considered to be January 1, 1978, and it is the nationality or domicile of the author on that date which determines eligibility. Eligibility may also be conferred by the nation of publication on that date.
1110
Acceptable statements of nationality, domicile, and nation of first publication. Generally, the application for registration should designate the name of the nation of which the author is a national, domiciliary, and in the case of a published work the name of the nation of first publication of the work. An application listing a territory or other political subdivision, rather than the name of the nation itself, is generally not acceptable as a basis for determining registrability. However, where it is obvious, from the statement given, what the name of the nation is, the application will be accepted without correspondence.
Examples of acceptable statements:
England
Great Britain
Wales
Swiss
French
Examples of unacceptable statements:
British Protected Person
1111
Some general examples illustrating basic principles. The following general examples reflect some of the principles of eligibility.
1)
A magazine article by an author who is a national and domiciliary of a nation with which the United States does not have copyright relations either bilaterally or through an international convention, first published in the United States or in a foreign nation which is on that date a party to the Universal Copyright Convention, is eligible for registration by virtue of the place of first publication. See sections 1102.09, 1103.02(d), and 1109 above.
2)
A book by an author who, on the date of first publication, is a national of a nation with which the United States has copyright relations, but is domiciled in a nation that has no copyright relations with the United States is eligible for registration by virtue of the author's nationality, even if the book is first published in a nation that does not have copyright relations with the United States. See sections 1102.04, 1103.02, and 1104.
3)
A musical composition by an author who is a national of a nation with which the United States has no copyright relations, but is domiciled in a foreign nation which, on the date of first publication, has copyright relations with the United States by virtue of the Universal Copyright Convention or the Buenos Aires Convention of 1910, is eligible for registration no matter where the work is first published. See sections 1103.02(b) and 1104.03.
4)
A musical composition is jointly authored by a lyricist who is a national and domiciliary of a nation with which the United States has no copyright relations and a composer who is domiciled in a nation that, on the date of first publication, is a member of the Universal Copyright Convention or the Buenos Aires Convention of 1910. By virtue of the domicile of the composer, the work is eligible for a registration extending to all the material covered by the claim, regardless of place of first publication. See sections 1103.02(b), 1104.03, and 1108.01.
[END OF CHAPTER 1100]