Uruguay Round Agreements Act
Encyclopedia
The Uruguay Round Agreements Act (URAA) was an Act of Congress
in the United States
that implemented in U.S. law the provisions agreed upon at the Uruguay Round
of negotiations of the General Agreement on Tariffs and Trade
(GATT).
sent the bill for the URAA to Congress
on September 27, 1994, where it was introduced in the House of Representatives
as H.R. 5110 and in the Senate
as S. 2467. The bill was submitted under special fast-track procedures
under which neither chamber could modify it. The House passed the bill on November 29, 1994; the Senate did so on December 1, 1994. President Clinton signed it into law on December 8, 1994 as Public Law Pub. L. No. 103-465, 103d Cong., 2d Sess., 108 Stat. 4809
. The URAA became effective on January 1, 1995. A number of technical corrections were made to the copyright provisions introduced by the URAA through the Copyright Technical Amendments Act (H.R. 672, which became Pub. L. 105-80) in 1997.
("Copyrights") of the United States Code
to include a completely reworded article 104A on copyright restorations on foreign works and to include a new chapter 11, containing a prohibition of bootleg
sound and video recordings of live performances. In Title 18 of the U.S. Code, a new article 2319A was inserted, detailing the penal measures against infringements of this new bootlegging prohibition.
on March 1, 1989, when its Berne Convention Implementation Act of 1988
entered in force. Article 18 of the Berne Convention specified that the treaty covered all works that were still copyrighted in their source country and that had not entered the public domain in the country where copyright was claimed due to the expiration of a previously granted copyright there. Consequently, the U.S. would have had to grant copyright on foreign works that were never copyrighted before in the U.S. But the United States denied this retroactivity of the Berne Convention and applied the rules of the treaty only to works first published after March 1, 1989. Earlier foreign works that were not covered by other treaties and that had until then not been subject to copyright in the U.S. remained uncopyrighted in the United States.
The U.S. faced harsh critique for its unilateral denouncement of the retroactivity of the Berne Convention defined in article 18, and ultimately had to reverse its position. The copyright restoration implemented by the URAA in 17 USC 104A remedied the situation and brought the U.S. legislation in-line with the requirements of the Berne Convention.
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. Copyrights on foreign works were only restored if these works were still covered by copyright or neighbouring rights in their source countries on January 1, 1996. But if so, the copyright in the U.S. was restored automatically; the restored copyright is subject to the normal U.S. term as if the work had never fallen into the public domain in the U.S. (104A(a)(1)(B)). If a country on that date was neither a member of the Berne Convention, nor of the WIPO Copyright Treaty, nor of the WIPO Performances and Phonograms Treaty
, nor of the World Trade Organization
(WTO), copyrights on works from that country were to be restored upon the earliest adherence date of the country to one of these four treaties. Excepted from the copyright restorations are only foreign works where the copyright was never owned or administered by the "Alien Property Custodian
," if the restored copyright would be owned by a government or instrumentality thereof. (17 USC 104A(a)(2))
In particular, rightsholders had to file a so-called "Notice of Intent to Enforce" (NIE) their restored copyright, or had to inform earlier users of their works (i.e., existing reliance parties) of that fact. The NIEs were to be filed at the U.S. Copyright Office and were made publicly accessible. To enforce a restored copyright against a user who used the work without authorization from the rightsholder after the copyright had been restored, no NIE was necessary.
In Golan v. Gonzales, both the CTEA and the copyright restorations of the URAA were attacked as violating the Copyright and Patent clause (article I, §8, clause 8) of the U.S. constitution, which gives Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (emphasis added). The plaintiffs claimed that the URAA violated the "limitedness" of the copyright term by removing works from the public domain
and placing them under copyright again, and that doing so also did not promote the progress of science or the arts. Furthermore, plaintiffs claimed the URAA violated the First
and the Fifth Amendment
. These challenges were dismissed by the United States Court for the District of Colorado, but the decision was appealed to the United States 10th Circuit Court of Appeals, which remanded the decision back to the district court, ordering a fresh evaluation of First Amendment constitutionality. On April 3, 2009, in Golan v. Holder, Judge Lewis Babcock in the United States Court for the District of Colorado considered the URAA in violation of the First Amendment. The court held that URAA Section 514 was substantially broader than necessary to achieve the government interest. By restoring copyright to certain public domain works, and requiring royalty payments and restricting derivative works after one year following restoration, Congress overstepped its constitutional authority and failed to fully protect First Amendment interests of reliance parties in the works. On March 7, 2011, the Supreme Court
granted a certiorari
by Golan to hear the case.
A second case, Luck's Music Library, Inc. v. Gonzales, which only addressed the Copyright and Patent Clause
issue, was dismissed.
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
that implemented in U.S. law the provisions agreed upon at the Uruguay Round
Uruguay Round
The Uruguay Round was the 8th round of Multilateral trade negotiations conducted within the framework of the General Agreement on Tariffs and Trade , spanning from 1986-1994 and embracing 123 countries as “contracting parties”. The Round transformed the GATT into the World Trade Organization...
of negotiations of the General Agreement on Tariffs and Trade
General Agreement on Tariffs and Trade
The General Agreement on Tariffs and Trade was negotiated during the UN Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the International Trade Organization . GATT was signed in 1947 and lasted until 1993, when it was replaced by the World...
(GATT).
Legislative history
U.S. President Bill ClintonBill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
sent the bill for the URAA to Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
on September 27, 1994, where it was introduced in the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
as H.R. 5110 and in the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
as S. 2467. The bill was submitted under special fast-track procedures
Fast track (trade)
The Fast track negotiating authority for trade agreements is the authority of the President of the United States to negotiate agreements that the Congress can approve or disapprove but cannot amend or filibuster. Fast-track negotiating authority is granted to the president by Congress...
under which neither chamber could modify it. The House passed the bill on November 29, 1994; the Senate did so on December 1, 1994. President Clinton signed it into law on December 8, 1994 as Public Law Pub. L. No. 103-465, 103d Cong., 2d Sess., 108 Stat. 4809
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
. The URAA became effective on January 1, 1995. A number of technical corrections were made to the copyright provisions introduced by the URAA through the Copyright Technical Amendments Act (H.R. 672, which became Pub. L. 105-80) in 1997.
Amendments to the U.S. copyright law
Title V of the URAA made several modifications to the Copyright law of the United States. It amended Title 17Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
("Copyrights") of the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
to include a completely reworded article 104A on copyright restorations on foreign works and to include a new chapter 11, containing a prohibition of bootleg
Bootleg recording
A bootleg recording is an audio or video recording of a performance that was not officially released by the artist or under other legal authority. The process of making and distributing such recordings is known as bootlegging...
sound and video recordings of live performances. In Title 18 of the U.S. Code, a new article 2319A was inserted, detailing the penal measures against infringements of this new bootlegging prohibition.
Copyright restorations
The U.S. had joined the Berne ConventionBerne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
on March 1, 1989, when its Berne Convention Implementation Act of 1988
Berne Convention Implementation Act of 1988
The Berne Convention Implementation Act of 1988 is a copyright act that came into force in the United States on March 1, 1989, making it a party to the Berne Convention for the Protection of Literary and Artistic Works.- Context :...
entered in force. Article 18 of the Berne Convention specified that the treaty covered all works that were still copyrighted in their source country and that had not entered the public domain in the country where copyright was claimed due to the expiration of a previously granted copyright there. Consequently, the U.S. would have had to grant copyright on foreign works that were never copyrighted before in the U.S. But the United States denied this retroactivity of the Berne Convention and applied the rules of the treaty only to works first published after March 1, 1989. Earlier foreign works that were not covered by other treaties and that had until then not been subject to copyright in the U.S. remained uncopyrighted in the United States.
The U.S. faced harsh critique for its unilateral denouncement of the retroactivity of the Berne Convention defined in article 18, and ultimately had to reverse its position. The copyright restoration implemented by the URAA in 17 USC 104A remedied the situation and brought the U.S. legislation in-line with the requirements of the Berne Convention.
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. Copyrights on foreign works were only restored if these works were still covered by copyright or neighbouring rights in their source countries on January 1, 1996. But if so, the copyright in the U.S. was restored automatically; the restored copyright is subject to the normal U.S. term as if the work had never fallen into the public domain in the U.S. (104A(a)(1)(B)). If a country on that date was neither a member of the Berne Convention, nor of the WIPO Copyright Treaty, nor of the WIPO Performances and Phonograms Treaty
WIPO Performances and Phonograms Treaty
The WIPO Performances and Phonograms Treaty is an international treaty signed by the member states of the World Intellectual Property Organization was adopted in Geneva on December 20, 1996...
, nor of the World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
(WTO), copyrights on works from that country were to be restored upon the earliest adherence date of the country to one of these four treaties. Excepted from the copyright restorations are only foreign works where the copyright was never owned or administered by the "Alien Property Custodian
Alien Property Custodian
An Alien Property Custodian was an office within the Government of the United States during World War I and again during World War II, serving as a Custodian of Enemy Property to property that belonged to US enemies.-World War I:...
," if the restored copyright would be owned by a government or instrumentality thereof. (17 USC 104A(a)(2))
Administrative procedures
The URAA also included in 17 USC 104A administrative procedures for dealing with cases where someone was already and in good faith using a work that had been in the public domain but on which the copyright was restored by the URAA. Such users are called "reliance parties" in 17 USC 104A.In particular, rightsholders had to file a so-called "Notice of Intent to Enforce" (NIE) their restored copyright, or had to inform earlier users of their works (i.e., existing reliance parties) of that fact. The NIEs were to be filed at the U.S. Copyright Office and were made publicly accessible. To enforce a restored copyright against a user who used the work without authorization from the rightsholder after the copyright had been restored, no NIE was necessary.
Challenges to the URAA restorations
The retroactive copyright restorations of the URAA have been challenged as violating the Constitution of the United States in two cases.In Golan v. Gonzales, both the CTEA and the copyright restorations of the URAA were attacked as violating the Copyright and Patent clause (article I, §8, clause 8) of the U.S. constitution, which gives Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (emphasis added). The plaintiffs claimed that the URAA violated the "limitedness" of the copyright term by removing works from the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
and placing them under copyright again, and that doing so also did not promote the progress of science or the arts. Furthermore, plaintiffs claimed the URAA violated the First
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
. These challenges were dismissed by the United States Court for the District of Colorado, but the decision was appealed to the United States 10th Circuit Court of Appeals, which remanded the decision back to the district court, ordering a fresh evaluation of First Amendment constitutionality. On April 3, 2009, in Golan v. Holder, Judge Lewis Babcock in the United States Court for the District of Colorado considered the URAA in violation of the First Amendment. The court held that URAA Section 514 was substantially broader than necessary to achieve the government interest. By restoring copyright to certain public domain works, and requiring royalty payments and restricting derivative works after one year following restoration, Congress overstepped its constitutional authority and failed to fully protect First Amendment interests of reliance parties in the works. On March 7, 2011, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
granted a certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
by Golan to hear the case.
A second case, Luck's Music Library, Inc. v. Gonzales, which only addressed the Copyright and Patent Clause
issue, was dismissed.