United States Code/Title 17/Chapter 1/Section 104

by the United States Government

§ 104—Subject Matter of Copyright: National Origin

(a) Unpublished Works.

The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author.

(b) Published Works.

The works specified by sections 102 and 103, when published, are subject to protection under this title if—

(1) on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled; or

(2) the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party; or

(3) the work is a sound recording that was first fixed in a treaty party; or

(4) the work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or

(5) the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or

(6) the work comes within the scope of a Presidential proclamation. Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States or to works that are first published in the United States, copyright protection on substantially the same basis as that on which the foreign nation extends protection to works of its own nationals and domiciliaries and works first published in that nation, the President may by proclamation extend protection under this title to works of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation, or which was first published in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under a proclamation.

For purposes of paragraph (2), a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be.

(c) Effect of Berne Convention.

No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto.

(d) Effect of Phonograms Treaties.

Notwithstanding the provisions of subsection (b), no works other than sound recordings shall be eligible for protection under this title solely by virtue of the adherence of the United States to the Geneva Phonograms Convention or the WIPO Performances and Phonograms Treaty.

Amendment history

Section 104 was added by § 101 of title I of the Copyright Act of 1976 (Pub. L. 94-553, Oct. 19, 1976, 90 Stat. 2541), with effect from January 1, 1978.

Berne Convention Implementation Act of 1988

Pub. L. 100-568, Oct. 31, 1988, 102 Stat. 2853

• Added new paragraph (b)(4) and renumbered old paragraph (b)(4) as paragraph (b)(5), with effect from March 1, 1989 [§ 4(a)(2)]
• Added subsection (c), with effect from March 1, 1989 [§ 4(a)(3)]

WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998

Pub. L. 105-304, Oct. 28, 1998, 112 Stat. 2862

• Amended paragraph (b)(1) by substituting "treaty party" for "foreign nation that is a party to a copyright treaty to which the United States is also a party", with effect from October 28, 1998. [§ 102(b)(1)(A)]
• Amended paragraph (b)(2) by substituting "treaty party" for "party to the Universal Copyright Convention", with effect from October 28, 1998. [§ 102(b)(1)(B)]
• Added new paragraph (b)(3), with effect from October 28, 1998. [§ 102(b)(1)(E)]
• Amended paragraph (b)(4) by substituting "pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party" for "Berne Convention work", with effect from October 28, 1998. [§ 102(b)(1)(F)]
• Renumbered old paragraph (b)(3) as new paragraph (b)(5) and moved it to after paragraph (b)(4), with effect from October 28, 1998. [§ 102(b)(1)(C)]
• Renumbered old paragraph (b)(5) as paragraph (b)(6), with effect from October 28, 1998. [§ 102(b)(1)(D)]
• Added final sentence of subsection (b), with effect from October 28, 1998. [§ 102(b)(1)(G)]
• Added subsection (d), with effect from May 20, 2002. [§ 102(b)(2)]

Treaties

The United States is a party to the following multilateral copyright treaties, as of January 2006 (Source: U.S. Department of State):

• Convention on literary and artistic copyrights ("Mexico City Convention"), signed at the Second International Conference of American States at Mexico City, January 27, 1902, effective June 30, 1908, to which the United States became a party, effective on that same date.
• Convention on literary and artistic copyright between the United States and other American Republics ("Buenos Aires Convention"), signed at the Fourth International Conference of American States at Buenos Aires on August 11, 1910. U.S. ratification deposited on May 1, 1911. Convention proclaimed by the President of the United States on July 13, 1914.
• Universal Copyright Convention done at Geneva on September 6, 1952 and revised at Paris on July 24, 1971. Geneva Act came into force on September 16, 1955, Paris Act came into force on July 10, 1974. United States became a party, effective on those same dates.
• Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms ("Geneva Phonograms Convention"), done at Geneva on October 29, 1971. Entered into force with respect to the United States on March 10, 1974.
• Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, done at Brussels on May 21, 1974. Entered into force with respect to the United States on March 7, 1985.
• Convention for the Protection of Literary and Artistic Works done at Berne on September 9, 1886 ("Berne Convention"), as completed at Paris on May 4, 1896, as revised at Berlin on November 13, 1908, as completed at Berne on March 20, 1914, as revised at Rome on June 2, 1928, at Brussels on June 26, 1948, at Stockholm on July 14, 1967, and at Paris on July 24, 1971, and as amended on October 2, 1979, to which United States became a party, effective March 1, 1989.
• Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") annexed to the Agreement establishing the World Trade Organization, done at Marrakesh on April 15, 1994. Entered into force with respect to the United States on January 1, 1995.
• WIPO Copyright Treaty adopted at Geneva on December 20, 1996. Entered into force with respect to the United States on March 6, 2002.
• WIPO Performances and Phonograms Treaty adopted at Geneva on December 20, 1996. Entered into force with respect of the United States on May 20, 2002.

For details of bilateral copyright treaties, see the Wikipedia article "Bilateral copyright agreements of the United States".

Proclamations

Section 104 of the Copyright Act of 1976 (Pub. L. 94-553) provided 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.’’

Three proclamations have been made under this section since:

1. Proclamation 5657 relating to Singapore: proclamation of May 18, 1987 (101 Stat. 2134), effective on that same date.
2. Proclamation 6413 relating to the People's Republic of China: proclamation of March 17, 1992 (57 FR 9647), effective on same date.
3. Proclamation 7161 relating to Vietnam: proclamation of December 23, 1998 (63 FR 71571), effective on that same date.

For additiomal details on affecting proclamations, see the Wikipedia article ‘‘Bilateral copyright agreements of the United States’’.

House Report No. 94-1476 (Extract)

Section 104 of the bill [this section], which sets forth the basic criteria under which works of foreign origin can be protected under the U.S. copyright law, divides all works coming within the scope of sections 102 and 103 into two categories: unpublished and published. Subsection (a) imposes no qualifications of nationality and domicile with respect to unpublished works. Subsection (b) would make published works subject to protection under any one of four conditions:

(1) The author is a national or domiciliary of the United States or of a country with which the United States has copyright relations under a treaty, or is a stateless person;

(2) The work is first published in the United States or in a country that is a party to the Universal Copyright Convention;

(3) The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or

(4) The work is covered by a Presidential proclamation extending protection to works originating in a specified country which extends protection to U.S. works "on substantially the same basis" as to its own works.

The third of these conditions represents a treaty obligation of the United States. Under the Second Protocol of the Universal Copyright Convention, protection under U.S. Copyright law is expressly required for works published by the United Nations, by U.N. specialized agencies and by the Organization of American States.