17 U.S.C. § 104 — Subject matter of copyright: National ori-

Page 15 TITLE 17—COPYRIGHTS § 104 prehend every copyrightable work that employs pre- existing material or data of any kind. There is nec- essarily some overlapping between the two, but they basically represent different concepts. A ‘‘compilation’’ results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been sub- ject to copyright. A ‘‘derivative work,’’ on the other hand, requires a process of recasting, transforming, or adapting ‘‘one or more preexisting works’’; the ‘‘pre- existing work’’ must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted. The second part of the sentence that makes up sec- tion 103(a) deals with the status of a compilation or de- rivative work unlawfully employing preexisting copy- righted material. In providing that protection does not extend to ‘‘any part of the work in which such material has been used unlawfully,’’ the bill prevents an in- fringer from benefiting, through copyright protection, from committing an unlawful act, but preserves protec- tion for those parts of the work that do not employ the preexisting work. Thus, an unauthorized translation of a novel could not be copyrighted at all, but the owner of copyright in an anthology of poetry could sue some- one who infringed the whole anthology, even though the infringer proves that publication of one of the poems was unauthorized. Under this provision, copy- right could be obtained as long as the use of the pre- existing work was not ‘‘unlawful,’’ even though the consent of the copyright owner had not been obtained. For instance, the unauthorized reproduction of a work might be ‘‘lawful’’ under the doctrine of fair use or an applicable foreign law, and if so the work incorporating it could be copyrighted. § 104. Subject matter of copyright: National ori- gin (a) UNPUBLISHED WORKS.—The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without re- gard to the nationality or domicile of the au- thor. (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 domi- ciliary 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 sculp- tural 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 na- tion extends, to works by authors who are na- tionals or domiciliaries of the United States or to works that are first published in the United States, copyright protection on sub- stantially 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, sus- pend, or revoke any such proclamation or im- pose any conditions or limitations on protec- tion 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 na- tion that is not a treaty party shall be consid- ered 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 reli- ance upon, the provisions of the Berne Conven- tion, or the adherence of the United States thereto. Any rights in a work eligible for protec- tion 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.—Not- withstanding the provisions of subsection (b), no works other than sound recordings shall be eli- gible 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. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2545; Pub. L. 100–568, § 4(a)(2), (3), Oct. 31, 1988, 102 Stat. 2855; Pub. L. 105–304, title I, § 102(b), Oct. 28, 1998, 112 Stat. 2862.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 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. Sub- section (b) would make published works subject to pro- tection 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 Copy- right Convention; (3) The work is first published by the United Na- tions, by any of its specialized agencies, or by the Or- ganization of American States; or (4) The work is covered by a Presidential proclama- tion 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 obli- gation 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. special- Page 16 TITLE 17—COPYRIGHTS § 104 ized agencies and by the Organization of American States. Editorial Notes AMENDMENTS 1998—Subsec. (b). Pub. L. 105–304, § 102(b)(1)(G), in- serted concluding provisions. Subsec. (b)(1). Pub. L. 105–304, § 102(b)(1)(A), sub- stituted ‘‘treaty party’’ for ‘‘foreign nation that is a party to a copyright treaty to which the United States is also a party’’. Subsec. (b)(2). Pub. L. 105–304, § 102(b)(1)(B), sub- stituted ‘‘treaty party’’ for ‘‘party to the Universal Copyright Convention’’. Subsec. (b)(3). Pub. L. 105–304, § 102(b)(1)(E), added par. (3). Former par. (3) redesignated (5). Subsec. (b)(4). Pub. L. 105–304, § 102(b)(1)(F), sub- stituted ‘‘pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an ar- chitectural 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’’. Subsec. (b)(5), (6). Pub. L. 105–304, § 102(b)(1)(C), (D), redesignated par. (3) as (5) and transferred it to appear after par. (4) and redesignated former par. (5) as (6). Subsec. (d). Pub. L. 105–304, § 102(b)(2), added subsec. (d). 1988—Subsec. (b)(4), (5). Pub. L. 100–568, § 4(a)(2), added par. (4) and redesignated former par. (4) as (5). Subsec. (c). Pub. L. 100–568, § 4(a)(3), added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENT Amendment by section 102(b)(1) of Pub. L. 105–304 ef- fective Oct. 28, 1998, except as otherwise provided, and amendment by section 102(b)(2) of Pub. L. 105–304 effec- tive May 20, 2002, see section 105(a), (b)(2)(C) of Pub. L. 105–304, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title. Executive Documents PROC. NO. 3792. COPYRIGHT EXTENSION: GERMANY Proc. No. 3792, July 12, 1967, 32 F.R. 10341, provided: WHEREAS the President is authorized, in accordance with the conditions prescribed in Section 9 of Title 17 of the United States Code which includes the provisions of the act of Congress approved March 4, 1909, 35 Stat. 1075, as amended by the act of September 25, 1941, 55 Stat. 732, to grant an extension of time for fulfillment of the conditions and formalities prescribed by the copyright laws of the United States of America, with respect to works first produced or published outside the United States of America and subject to copyright or to renewal of copyright under the laws of the United States of America, by nationals of countries which ac- cord substantially equal treatment to citizens of the United States of America; and WHEREAS satisfactory official assurances have been received that, since April 15, 1892, citizens of the United States have been entitled to obtain copyright in Ger- many for their works on substantially the same basis as German citizens without the need of complying with any formalities, provided such works secured protec- tion in the United States; and WHEREAS, pursuant to Article 2 of the Law No. 8, Industrial, Literary and Artistic Property Rights of Foreign Nations and Nationals, promulgated by the Al- lied High Commission for Germany on October 20, 1949, literary or artistic property rights in Germany owned by United States nationals at the commencement of or during the state of war between Germany and the United States of America which were transferred, seized, requisitioned, revoked or otherwise impaired by war measures, whether legislative, judicial or adminis- trative, were, upon request made prior to October 3, 1950, restored to such United States nationals or their legal successors; and WHEREAS, pursuant to Article 5 of the aforesaid law, any literary or artistic property right in Germany owned by a United States national at the commence- ment of or during the state of war between Germany and the United States of America was, upon request made prior to October 3, 1950, extended in term for a pe- riod corresponding to the inclusive time from the date of the commencement of the state of war, or such later date on which such right came in existence, to Sep- tember 30, 1949; and WHEREAS, by virtue of a proclamation by the Presi- dent of the United States of America dated May 25, 1922, 42 Stat. 2271, German citizens are and have been entitled to the benefits of the act of Congress approved March 4, 1909, 35 Stat. 1075, as amended, including the benefits of Section 1(e) of the aforementioned Title 17 of the United States Code [section 1(e) of former Title 17]; and WHEREAS, a letter of February 6, 1950, from the Chancellor of the Federal Republic of Germany to the Chairman of the Allied High Commission for Germany established the mutual understanding that reciprocal copyright relations continued in effect between the Federal Republic of Germany and the United States of America: NOW, THEREFORE, I, LYNDON B. JOHNSON, Presi- dent of the United States of America, by virtue of the authority vested in me by Section 9 of Title 17 of the United States Code [section 9 of former Title 17], do de- clare and proclaim: (1) That, with respect to works first produced or pub- lished outside the United States of America: (a) where the work was subject to copyright under the laws of the United States of America on or after September 3, 1939, and on or before May 5, 1956, by an author or other owner who was then a German citizen; or (b) where the work was subject to renewal of copyright under the laws of the United States of America on or after Sep- tember 3, 1939, and on or before May 5, 1956, by an au- thor or other person specified in Sections 24 and 25 of the aforesaid Title 17 [sections 24 and 25 of former Title 17], who was then a German citizen, there has existed during several years of the aforementioned period such disruption and suspension of facilities essential to com- pliance with conditions and formalities prescribed with respect to such works by the copyright law of the United States of America as to bring such works within the terms of Section 9(b) of the aforesaid Title 17 [sec- tion 9(b) of former Title 17]; and (2) That, in view of the reciprocal treatment accorded to citizens of the United States by the Federal Republic of Germany, the time within which persons who are presently German citizens may comply with such con- ditions and formalities with respect to such works is hereby extended for one year after the date of this proclamation. It shall be understood that the term of copyright in any case is not and cannot be altered or affected by this proclamation. It shall also be understood that, as provided by Section 9(b) of Title 17, United States Code [section 9(b) of former Title 17], no liability shall at- tach under that title for lawful uses made or acts done prior to the effective date of this proclamation in con- nection with the above-described works, or with respect to the continuance for one year subsequent to such date of any business undertaking or enterprise lawfully undertaken prior to such date involving expenditure or contractual obligation in connection with the exploi- tation, production, reproduction, circulation or per- formance of any such works. IN WITNESS WHEREOF, I have hereunto set my hand this twelfth day of July in the year of our Lord Page 17 TITLE 17—COPYRIGHTS § 104A nineteen hundred and sixty-seven, and of the Independ- ence of the United States of America the one hundred and ninety-second. LYNDON B. JOHNSON. PRESIDENTIAL PROCLAMATIONS ISSUED UNDER PREDECESSOR PROVISIONS Pub. L. 94–553, title I, § 104, Oct. 19, 1976, 90 Stat. 2599, provided that: ‘‘All proclamations issued by the Presi- dent under section 1(e) or 9(b) of title 17 as it existed on December 31, 1977, or under previous copyright stat- utes of the United States, shall continue in force until terminated, suspended, or revised by the President.’’ § 104A. Copyright in restored works (a) AUTOMATIC PROTECTION AND TERM.— (1) TERM.— (A) Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration. (B) Any work in which copyright is re- stored under this section shall 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 en- tered the public domain in the United States. (2) EXCEPTION.—Any work in which the copy- right was ever owned or administered by the Alien Property Custodian and in which the re- stored copyright would be owned by a govern- ment or instrumentality thereof, is not a re- stored work. (b) OWNERSHIP OF RESTORED COPYRIGHT.—A re- stored work vests initially in the author or ini- tial rightholder of the work as determined by the law of the source country of the work. (c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PAR- TIES.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright Office a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright Office is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reli- ance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. (d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— (1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY.— As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration. (2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the rem- edies provided in chapter 5 of this title shall be available, with respect to an act of infringe- ment of a restored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: (A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright Office, dur- ing the 24-month period beginning on the date of restoration, a notice of intent to en- force the restored copyright; and (ii)(I) the act of infringement commenced after the end of the 12-month period begin- ning on the date of publication of the notice in the Federal Register; (II) the act of infringement commenced be- fore the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case rem- edies shall be available only for infringe- ment occurring after the end of that 12- month period; or (III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the no- tice of intent in the Federal Register. (B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a notice of intent to enforce a restored copyright; and (ii)(I) the act of infringement commenced after the end of the 12-month period begin- ning on the date the notice of intent is re- ceived; (II) the act of infringement commenced be- fore the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case rem- edies shall be available only for the infringe- ment occurring after the end of that 12- month period; or (III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. In the event that notice is provided under both subparagraphs (A) and (B), the 12-month pe- riod referred to in such subparagraphs shall run from the earlier of publication or service of notice. (3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created— (i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the restored work is an el- igible country on such date, or (ii) before the date on which the source country of the restored work becomes an eli- gible country, if that country is not an eligi- ble country on such date of enactment, a reliance party may continue to exploit that derivative work for the duration of the re- stored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be sub- ject to a remedy for infringement but for the provisions of this paragraph. (B) In the absence of an agreement between the parties, the amount of such compensation