Compendium of US Copyright Office Practices (1973)/Chapter 8

What constitutes.For purposes of this chapter of the Compendium, a work is regarded as first published abroad it first publication took place in a foreign country - that is, in a country which is outside the territorial limits of the United States and which is not an incorporated or unincorporated territory of the United States or an organized area under the jurisdiction of the United States.

II.

Simultaneous Pubication. For purposes of this chapter of the Compendium, though not necessarily for other purposes, publication in the United States and in a foreign country on the same day will generally be regarded as first publication in the United States rather than first publication abroad.

Exceptions:

a.

In the case of an English-language book or periodical manufactured abroad but otherwise eligible for full term registration under the U.C.C. and the exemptions of § 9(c), simultaneous publication in the United

States and in a foreign country will not prevent registration on Form A-B Foreign. A cautionary letter should be sent in such cases.

b.

In the case of an English-language book or periodical, manufactured abroad but otherwise eligible for ad interim copyright, simultaneous publication in the United States and in a foreign country will not pre

vent ad interim registration. A cautionary letter should also be sent in these cases.

8.1.2

Copyrightability of works first published abroad. Except in the following two cases, the place of publication is immaterial in determining the basic copyrightability of a work.

I.

Publication in a U.C.C. country Where the author of a work is not a citizen or domiciliary of the United states, the work is copyrightable if first published in e foreign country that is a party to the U.C.C., even if the author is a citizen of a country with which the United States does not have copyright relations.

Example:

A. work by a Russian citizen, domiciled in the U.S.S.R., is copyrightable if first published in France.

II.

Ad interim copyright. Ad interim copyright is not available for books and periodicals first published in the United States. (See Part 8.4.)

8.1.3

Effect of first publication abroad.

I.

General rule. As a rule, copyright in the United States is secured by the act of publication, and endures for a term computed from the date Of first publication, whether the work was first published in the United States or abroad.

II.

Exceptions.

a.

Unpublished registration. Copyright in a work first registered in unpublished form is secured by the act of registration in this Office, and endures for a term computed from the date of registration.

1.

The requirements for unpublished registration are the same for works by foreign authors as they are for works by U.S. citizens and domiciliaries. Exception: musical compositions by foreign authors are registered on Form E Foreign, rather than on Form E. (See Chapters 5, 7, and 9.)

2.

When a work originally registered in unpublished form is first published, in the United States or abroad, no new copyright is secured in the material for, which unpublished registration had been made earlier; the term or scope of protection for that material is not extended by publication or by registration for the published edition.

3.

When a work originally registered in unpublished form is published, either.in the United States or abroad, it is necessary to make another registration to cover the published version. Exception: Registration for

the published version is not required for foreign works protected under the U.C.C. and first published abroad with the copyright notice specified in § 9(c). (See topic 8.3.1.11.)

b.

Ad interim.registration. In the case of books and periodicals subject to the manufacturing requirements (see Chap. 6), ad interim copyright is secured by ad interim registration within six months of first publication abroad. (See Part 8.4.)

1.

Ad interim copyright lasts a maximum of five years. and the ad interim term is computed

from the date of first publication abroad. (See topic 8.4.3.1.)

2.

Ad interim copyright may be extended to the full term if an American edition is manufactured and published during the five-year ad interim

period. and if a claim in the American edition is registered. (See item 8.4.b.II.b.) In such case the full copyright term is computed from the date of first publication abroad.

III.

Requirements for registration. The application covering a work first published abroad should state the date of first publication abroad. and should be accompanied by a copy or copies of the foreign edition. (See topic 8.4.3.11.)

IV.

Registrability of American edition of work first published abroad.

a.

General rule. With the exception of books and periodicals in which a claim to ad interim copyright has been registered, registration for the American edition of a work first published abroad will not be made unless new matter has been added. (See topic 8.4.6.11.)

b.

Registration for American edition of work registered ad interim. When the American edition of an English language book or periodocal is identical in substance to the edition first published abroad, registration will be made only if:

1.

Ad interim registration has been made, and

2.

The American edition has been manufactured and published within five years after the date of first publication abroad.

Part 8.2 NOTICE OF COPYRIGHT

8.2.1

General requirement of Copyright notice.

I.

First publication abroad. To secure copyright in the United States published abroad must generally bear the statutory copyright notice at the time of first publication) this is true regardless of whether the author is a citizen or domiciliary of the United States, a citizen of a U.C.C. oountry or of a country not a party to the

U.C.C., or whether the work was first published in a U.C.C. country. (As to notice requirements in general, see Chapter 4; as to publication, see Chapter 3.)

a.

Helm case doctrine. The majority opinion in the 1946 case of Helm v. Universal Picture Co. suggested that works by fore1gn authors might, secure copyright in the United States by publication without notice abroad.

1.

On the basis of this opinion the Copyright Office for some time registered works first published abroad without an acceptable notice, under the rule of doubt.

2.

The Copyright Office now talkes the position that, whatever validity the Helm case doctrine may have had at one time, the doctrine is no longer effective view of the U.C.C. and later developments. (37 C.F.R. § 202.2(a)(3).)

II.

Later publication.

a.

U.C.C. requirements. The statute (§ 9(c)) provides that the special exemptions tor works protected under the U.C.C. "shall apply only it from the time of first publication all the copies of the work published with the authority of the author or other copyright proprietor shall bear the symbol © accompanied by the name of the copyright proprietor end the year date of first publication placed in such a manner and location as to give reasonable notice of claim of copyright."

b.

Later publication in United States. To maintain copyright in a work first published abroad, it is essential that "each copy thereof published or offered for sale in the United States by authority of the copyright proprietor" bear the statutory copyright notice. (17 U.S.C. § 10.)

III.

Copyright Office policy.

a.

No retroactive effect. The Copyright Office's change in policy with respect to registration for works by foreign authors first published abroad without an acceptable copyright notice became effective on June 18, 1959, when new regu1ations (37 C.F.R § 202.2(a)(3))) were adopted. Works published on or after June 18, 1959 will be governed by the new policy; works published before that date will not be refused registration because the copyright notice was omitted or defective, but a warning letter will be sent.

b.

Deposit copies must bear notice. With the exception of works seeking ad interim registration, the copies of works deposited for registration following publication abroad after June 18, 1959 must bear a notice of copyright in the required form and position. How ever, in evaluating the acceptability of a notice appearing on a work first published abroad by a foreign author, the Copyright Office will apply liberal standards, in line with the policy underlying the U.C.C. and various

judicial decisions.

c.

Notice acceptable at face value. When the copy or copies deposited for registration of a work first published abroad contain an acceptable notice, registration will be made on the assumption that all copies as first published bore the required notice. Except in the case specified in paragraph d, below, no question will be raised 8S to whether other copies have ever been published without notice under the authority of the copyright over, either in the United States or abroad.

d.

Previous publication indicated. Where information appearing 1n the application, copy or copies, or correspondence in connection with a work first published abroad clearly indicates that an earlier edition of the work has been published, registration for the present edition will be made only if it contains new matter which is described on the application. Where registration for the earlier edition is also desired, a copy (or copies) of that edition should be deposited. (See topic 5.2.2.I.h.)

8.2.2

Form and position of notice.

I.

In general.

a.

As a rule, registration will be made for work first published abroad if it bears a copyright notice satisfying the ordinary requirements of §§ 19 and 20 of the Code. (See, Chapter 4.)

b.

Registration will be made, tor a work eligible for protection under the Universal ,Copyright Convention (see Part 7. 2) if it bears a notice satisfying the U.C,C. requirements specified in § 9(c) -- the symbol © accompanied by the name of the copyright proprietor and the year of first publication, placed in such manner and location as to give reasonable notice of claim of copyright.

c.

Where registrability of a work depends upon the availability of the U.C.C. exemptions of § 9(c), the copies as first published should bear the special U.C.C. notice (see paragraph b., above). Where the notice in such a case meets the ordinary requirements of § 19 but not the U.C.C. requirements of § 9(c), registration will be made under the rule of doubt, and a cautionary letter will be sent.

Examples:

1.

Notice includes "Copyright:" or "Copr. instead of ©.

2.

Notice on pictorial work does not include year date.

d.

Where the notice on a work first published abroad meets (neither the requirements of §§ 19 and 20 nor those of § 9(c), full-term copyright registration will be denied, However, if the work is an English-language book or periodical, ad interim registration may be possible.

II.

Name of the copyright proprietor.

a.

As a general rule, the notice appearing on a work first published abroad should contain the name of the owner of the right to secure U.S. copyright on the date of first publication, and registration should be made in that name.

b.

Where the foreign edition bears one notice, and it agrees with the claimant named in the application, registration will be made in that nname, even if the copies refer to someone else as the owner or licensee

of U.S. rights.

Examples:

1.

Notice reads: "© Xavier Kumqut 1958 --Wow and Flutter Music Pub1ishers, Exclusive Licensees for all Western Hemisphere Countries.":Registration will be made in the name of Kumquat without question.

2.

Notice reads: "© Charles Brown Ltd., London, 1959; For U.S.A. and Canada, Brown Music, Inc., New York." Registration will be made in the name of Charles Brown Ltd., without question.

c.

Where the foreign edition bears one notice which agrees with the claimant named in the application but specifically excludes the United States from its effect, registration should be refused.

Example: Notice reads: "© Charles Brown Ltd., 1959, for the entire world (excluding U.S.A.and Canada)."

d.

Where the foreign edition contains two separate copyright notices, and the name in one of the notices agrees with the claimant used in the application, registration will be made, unless the other notice is specifically identified as applying to the U.S. copyright.

Examp1es:

1.

Notices:

An application in either name will be accepted.

2.

Notices:

An application in the name of Mme. Fairchild will be questioned..

3.

Notices:

An application in the name of Peter Rabbit Music Co., Ltd., London, will be questioned.

e.

Where the foreign edition bears a notice that disagrees with the claimant named in the application, the variance will be questioned.

1.

If the person named in the notice was the owner of the right to secure U.S. copyright on the date of first publication abroad, the Office will request that registration be made in his name, and will point out the possibility of recording an assignment.

2.

Where the work is an English-language book or periodical which would have been subject to the manufacturing requirements unless published with the U.C.C. notice provided in § 9(c), registration on Form A-B Foreign will be made only in the name in the notice; recordation of an assignment will be suggested where appropriate. In such a case registration in the name of someone other than the person named in the notice will be considered only on Form A-B Ad Interim.

Example

An English-language book by a British author is manufactured and first published in the United Kingdom with a notice in the name of Colin Outsider; an application is submitted in the name of The Insider Press, Inc., a U.S. publishing firm. Registration on Form A-B Foreign will be made only in the name of Outsider; if the applicant wishes registration in the name of The Insider Press, Inc., he must apply for ad interim registration on Form A-B Ad Interim.

3.

In cases other than those described in paragraph 2, above, where the name in the notice was not that of the owner of the right to secure U.S. copyright on the date of first publication:

(a)

Registration in the name in the notice, with the recordation of an assignment or similar document, will be suggested.

(b)

Registration in the name of the person who owned the right to secure U.S. copyright on the date of first publication will be discouraged, but will not be refused; the application will be annotated to show the name in the notice.

f.

Where the U.S. edition of a work originally registered ad interim contains no new matter, registration will be made in the name in the notice on the American edition. If the name is different from that in which ad interim registration was made, and if no assignment has been recorded, a cautionary letter may be sent.

III.

Date in the notice.

a.

As a rule, the requirements governing the use of the year date in the notice, as outlined in topic 4.2.4, apply equally to works first published in the United States and those first published abroad.

b.

Where the U.S. edition of a work originally registered ad interim contains no new matter, registration will be refused unless the notice contains a year date not more than one year later than the year date of first publication abroad. (37 C.F.R. § 202.2(6)(iii))

IV.

Position of the notice.

a.

A notice that would meet the ordinary position requirements of § 20 (see part 4.3) if the work were first published in the U.S. would be equally acceptable if the work were first published abroad.

b.

Where the author of a work is not a citizen or domiciliary of the U.S., and the author is a citizen of a U.C.C. country or the work was first published in a U.C.C. country, the position requirements are satisfied if the notice is "printed in such manner and location as to give reasonable notice of claim of copyright." Where, in such cases, the notice is a substantial departure from the ordinary requirements of § 20, a cautionary letter may be sent.

Examples:

(1)

Notice on last page of book; accept as "reasonable" but send cautionary letter.

(2)

Notice on page 213 of 650-page book; reject.

PART 8.3 REQUIREMENTS FOR REGISTRATION

8.3.1

Necessity for registration.

I.

In General works first published abroad are generally subject to the same registration requirements as works first published; in the U. S. (See Chapters 5 and 9). However, it is not: the practice of the Compliance Section to initiate compliance action with respect to foreign publications (see topic 5.4.2.)

II.

U. C. C ,Works.

8.3.2

Copies and fees.(See Chapters 5 and 9).

I.

Unpubi1shed works. For registration in. unpublished form, works of foreign origin must meet the same deposit and see requirements as those applicable to domestic works. (See topic. 5.2.1.)

II.

Published works.

a.

U. S. author. Where the author of a work is a U. S. citizen or domiciliary the statute requires that, except in the case of ad interim registration, deposit be made of two copies of the work as first published abroad and the ordinary reistrat1on fee. For ad interim registration in such cases the statute requires deposit one copy of the foreign edition and the registration fee or $6.00. The waiver-of-fee option is not available to works by U. S. cit1zen's or domiciliarries. (See Part 5.2.)

b.

Fore1gn, or stateiess authors.

1.

In General., Where the author of the work is foreign or stateless and not domiciled in the U. S., and first. publication took place in a foreign country, the statute ordinarily requires the dapos1t of "one complete copy of the best edition then published in such foreign country" (§ 13) and the prescribed registration fee (§ 215). See paragraph c, below, concerning the requirements for waiver-of-fee registrations.

2.

"Best edition then published." The deposit should generally consist of the best foreign edition in existence. (See topic 5.3.1.)

(a)

Deposit of a copy of a later American edition of the work would not be acceptable for registration of a work first published abroad. (But see topic 5.2.2.I.h.)

(b)

Where the Office knows of a better foreign edition than the one represented by the copy

deposited, registration may be made on the basis of the copies received, and a request for a copy of the better edition may be sent later. (See topic 5.3.1.111 and 8.2.1.

c.

Waiver-of-fee option.

1.

Where the author and copyright proprietor of a work first published abroad are neither citizens nor domiciliaries of the U.S., payment of the registration fee may be waived if the following deposits are made in the Copyright Office "within six months from the date of first publication abroad ," (Code, § 2151).

(a)

An application for registration.

(b)

Two copies of the work.

(c)

A "catalog card in form and content satisfactory to the Register of Copyrights."

2.

The waiver-of-fee option is available equally in the case of ad interim registrations and in the case of registrations for other types of works first published abroad. It is not available in any case where the author or copyright proprietor is a U.S. citizen or domiciliary.

3.

The receipt of the catalog card is an essential requirement for registration under the waiver-of-fee option, but as long as an effort has been made to fill out the card, registration without fee will not be refused because the card contains errors or omissions.

4.

The six-month option period is computed from the date of first publication abroad, and ordinarily expires on the same day of the month as that on which it began.

(a)

For example, where the date of publication was January 16, 1958, the waiver-of-fee period expired on July 16, 1958.

(b)

In the case of works first published on December 31, March 31, May 31, August 29, August 30, August 31, and October 31, there is no corresponding day in the month in which the six-month period

would normally end. In such cases no fee will be required if the necessary material is received on the following dates, respectively: July 1, October 1, December 1, March 1, (except in leap years), March 2, March 3, and May 1.

5.

Where an application, two copies, and a catalog card are received within the six-month period but registration must be postponed because of some minor formal insufficiency in the application (e.g., lack of signature, variance in authorship) an effort will be made to obtain a new application within the option period. How ever, registration may still be made under the option even if the new application is not received until after the period has expired.

Part 8.4 AD INTERIM COPYRIGHT

8.4.1

In general.

I.

Definition. Ad interim copyright is a short-term copyright available to English-language books and periodicals which have been manufactured and first published abroad. It is secured by registration within six months of first publication abroad, and lasts for a maximum of five years from the date of first publication; copyright may be extended to the full term if an American edition is manufactured and published within the five-year period and if a claim to copyright in the American edition is also registered.

II.

Cross-references. Many of the requirements and practices affecting ad interim copyright are discussed in other parts of the Compendium in general and this chapter in particular:

a.

As to the manufacturing requirements in general, see Chapter 6.

b.

As to practices concerning books and periodicals partly in English and partly in foreign languages, see topic 6.2.1.III.

c.

As to practices concerning books and periodicals by authors of different nationalities, see topic 6.2.1.III.

d.

As to what constitutes first publication abroad and the effect of simultaneous publication, see topic 8.2.1.

e.

As to the effect of first publication abroad, see topic 8.1.3.II.b.

f.

As to registration for an American edition for a work registered ad interim see topic 8.1.3.IV.b.

g.

As to requirements for a copyright notice, see topics 8.2.1.I.b. and 8.2.1.III.

h.

As to the practices concerning the copyright notice, see topic 8.2.2.

i

As to practices concerning copies and fees, see topic 8.3.2.

8.4.2

Works subject to ad interim registration.

I.

Scope of ad interim copyright. In general, a work is not eligible for ad interim registration unless it meets the following conditions:

a.

It must be a "book" (see Part 2.2) or a "periodical" (see Part 2.3), including a contribution to a periodical.

b.

It must contain some copyrightable English-language text. (see topic 6.2.1).

c.

It must have been partly or entirley manufactured abroad (see topic 6.2.2).

d.

It must have been first published abroad (see topic 8.1.1).

II.

U.C.C. exemption. Works of foreign authorship protected under the Universal Copyright Convention (see Part 7.2) are completely exempted from the manufacturing and ad interim requirements if they bear the special U.C.C. notice provided in § 9(c) of the statute (see topic 8.2.2.1.).

III.

Copyright Office policy concerning ad interim registrations.

a.

In general. As a rule, where it is reasonably arguable that the manufacturing and ad interim requirements apply to a work, ad interim registration will not be refused, even though its necessity is doubtful. In appropriate cases the Copyright Office will suggest registration in another class or dual registration (see topic 6.2.1).

Examples:

(a)

A drama published in book form.

(b)

(c)

A book partly in English and partly in French.

(d)

A book written partly by an American and partly by a non-American U.C.C. author.

b.

Works exempted under U.C.C. Even though a work seems clearly to be exempted from the manufacturing and ad interim requirements under the U.C.C., ad interim registration will not be refused if the applicant desires it. Where it appears that the applicant is not aware of the exemption, the Copyright Office will inform him of it before making registration.

8.4.3

Requirements for ad interim registration.

I.

Time limits.

a.

The six-month period is computed from the date of first publication abroad, and ordinarily expires on the same day of the month as that on which it began; for example, where the date of publication was January 16, 1958, the period for ad interim registration

expired on July 16, 1958.

b.

In the case of works published on December 31, March 31, May 31, August 29, August 30, August 31, and October 31, there is no corresponding day in the month in which the six-month period would normally end. In such cases ad interim registration will not be refused if the material is received on the following dates respectively: July 1, October 1, December 1, March 1 (except in leap years), March 2, March 3, and May 1.

c.

Where an application, and the necessary copy and fee are received within the six-month period, but ad interim registration must be postponed because of some minor formal insufficiency in the application (e.g., leek of signature, lack of address of claimant, etc.), an effort will be made to obtain a new application within the six-month period. However, ad interim registration may still be made even if the new application is not received until after the period has expired.

II.

Copy and fee.

a.

For ad interim registration the statute (§§ 22, 215) requires the deposit of "one complete copy of the foreign edition," and a registration fee of $6.00.

b.

The waiver-of-fee option, permitting registration on the basis of an application, two copies, and a catalog card, applies to ad interim registration where neither the author nor the copyright proprietor is a U.S. citizen or domiciliary.

III.

Works published in installments. Where a work is first published abroad in installments, a separate ad interim registration must be made for each installment. However, where an American edition of the entire work is published before all the foreign installments have been published, only those published abroad before the date of U. S. publication may be registered ad interim.

8.4.4

Notice of Copyright.(See Part 3.2 and topic 4.1.3.I.)

I.

Notice on copies first published abroad.

a.

Works subject to ad interim registration need not bear a notice at the time of first publication abroad, and ad interim registration will be made whether the copies bear a good notice, a defective notice, or no notice.

b.

Where the copy or copies deposited for ad interim registration bear no notice, registration will ordinarily be made without correspondence., Where the notice is defective (e,g., year date lacking; initials rather than name used; notice at end of book) registration should be made but a cautionary letter should be cent pointing out the necessity for correcting the notice before any copies are published in the U. S. Where the name in the notice differs from the name given as copy~ right proprietor in the ad interim application, the variance will be questioned, but registration in a name other than that in the notice will not be refused, (See topic 8.2.2.11.2.)

II.

Notice on U. S. edition.

a.

Where the U. S. edition of a work originally registered ad interim contains no new matter, registration will be refused unless the notice contains the year date of first publication abroad "(See topic 8.2.2.II.e.2)."

b.

Where the U. S. edition of a work originally registered ad interim contains no new matter, registration will be made in the name in the notice on the American edition. If the name is different from that in which ad interim registration was made, and if no assignment has been recorded, a cautionary letter may be sent. (See topic 8.2.2.11.)

8.4.5

Importation of copies.

I.

In general. The law (§ 16) permits the importation into the U. S. of not more than 1500 copies of the particular book or periodical covered by an ad interim copyright, provided that ad interim registration has already been made, and that the copies imported bear an acceptable copyright notice. This privilege of importation extends equally to works by foreign and U.S. authors.

II.

Import statement. At the time of ad interim registration, the Copyright Office issues to the copyright claimant (or to the importer indicated on the application form) a statement authorizing the importation of up to 1500 copies; following its use, this statement is returned to the Copyright Office by the customs officials.

a.

If less than 1,500 copies have been imported the Copyright Office issues another import statement for the remainder. This process is continued until the 1,500-copy quota has been exhausted.

b.

The 1,500-copy limit on importation does not apply to "8 foreign newspaper or magazine" (17 U.S.C. § 107(b)). Since an unlimited number of copies of these works can be imported, the issuance of an import statement limited to 1500 copies is unnecessary and might be confusing. For this reason, no import statement is issued for "a foreign newspaper or magazine."

1.

The phrase "newspaper or magazine" is not the equivalent of the term "periodical" for this purpose.

It applies to popular works issued periodically to a general readership, but is not considered to apply to scholarly, technical, or professional periodicals issued to a specialized readership. Import statements are issued tor this latter type of material.

2.

Issuance of import statements is also withheld for contributions to periodicals, but for a different reason. In that case the importation and limitations apply, and to issue import statements for several contributions to the same issue, of a periodical could result 1n the importation of considerably more than 1,500 copies.

8.4.6

Extension of ad interim copyright to full term.

I.

Statutory provision. "Whenever within the period of such protection an authorized edition of such books or periodicals shall be published within the United States, in accordance with the manufacturing provisions specified in section 16 of the title, and whenever the provisions of this title as to deposit of copies, registration, filing of affidavits, and the printing of the copyright notice shall have been duly compiled with, the copyright shall be extended to endure in such a book or periodical for the term provided in this time." (17 U.S.C § 23.)

a.

Where the first U. S. edition of a work originally registered ad interim contains no copyrightable new matter, registrations will be made only if the following four requirements are met:

1.

The U. S. edition was produced in compliance with the manufacturing requirements. (see Chapter 6.)

2.

It was published in the U. S. within the five-year ad interim term as computed from the date of first publication abroad.

3.

The copies as published bear the required statutory copyright notice, including the year date of first publication abroad (See Chapter 4.)

4.

Deposit is made of an application, two copies of the American edition, and the registration fee.

b.

As a rule, registration for the American edition should be made within the five-year ad interim term. However, as long as the edition was manufactured and published in the U.S. within the five-year period, registration will be made after the ad interim term has expired I as a doubtful case. A cautionary letter will be sent in such cases.

III.

Extension of subsisting ad interim copyrights under U.C.C.

a.

The statute (§ 9(c)) also provides that on the date the U.C.C. comes into effect in a particular country copy right protection for any book or periodical by a citizen of such country, in which an ad interim copyright was subsisting on that date, is automatically extended to the full term.

b.

For this purpose, ad interim copyright was subsisting in the work on the effective date of the U.C.C. if a claim to ad interim copyright had actually been registered on or before the effective date. It was not subsisting if the work was published more than six months before the effective date, or was published within six months before the effective date but without the U.C.C. notice. Where a work was published within six months before the effective date and bore a U.C.C. notice, the case will be treated as though an ad interim copyright was subsisting in the work on the effective date, under the rule of doubt.

c.

Where a subsisting ad interim copyright has been extended to the full term by virtue of the provisions of the U.C.C. and. §9(c), registration for a later American reprint edition will not be refused if it meets the four requirements specified in topic 8.4.6.II.a., above.