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Compendium II: Copyright Office Practices

Chapter 1100

Compendium Home | Table of Contents

Chapter 1100

 

ELIGIBILITY

 

Outline of Topics

 

1101 Applicability of this chapter.

 

1101.01 Sound recordings.

 

1102 Definitions.

 

1102.01 Author.

1102.02 Domicile.

1102.03 First publication.

1102.04 National.

1102.05 Producer of phonograms.

1102.06 Sovereign authority of a foreign nation.

1102.07 Stateless.

1102.08 United States.

1102.09 Universal Copyright Convention.

 

1103 Statutory provisions.

 

1103.01 Unpublished works.

1103.02 Published works.

1103.03 Copyright law extended to certain terri-

tories.

 

1104 Multilateral copyright treaties to which the

United States is a party.

 

1104.01 Mexico City Convention of 1902.

1104.02 Buenos Aires Convention of 1910.

1104.03 Universal Copyright Convention.

1104.04 Phonogram Convention.

 

1105 Presidential proclamations.

 

1105.01 Proclamations issued under the current Act.

1105.02 Continuance of earlier proclamations.

1105.03 Coverage of earlier proclamations.

 

1106 Existence of copyright relations unclear.

 

1107 Copyright Office policy.

 

-1 -

(1984]


 

Chapter 1100

ELIGIBILITY

Outline of Topics -2-

 

Authors: particular situations.

 

1108.01 More than one author.

1108.02 More than one nationality.

1108.03 Work made for hire.

1108.04 Nationality and domicile of corporations and

similar organizations.

1108.05 Compilations and derivative works.

1108.06 Stateless.

1108.07 united States

1108.08 Territorial areas of the United States.

1108.09 Anonymous and pseudonymous works.

1108.10 First publication after death of author.

 

1109 Time when eligibility is determined.

 

1109.01 Registered as unpublished: ineligible when

published.

1109.02 Change in nationality or domicile after publi-

cation.

1109.03 Works distributed only in the form of phono-

.records before 1978.

 

1110 Acceptable statements of nationality, domicile,

and nation of first publication.

 

1111 Some general examples illustrating basic principles.

 

[1984]


 

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to unpublished works, whenever created, and to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 explana-

tion 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 UCC, 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 copy-

right 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 nation-

ality 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.

 

1100-1

 

[1984]


 

1100-2

 

1102.03 Definitions. (cont'd)

 

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 dis-

tributed 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 ques-

tion 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 eligibi-

lity, even though the Office is informed

that the work was also first published on

the same date in one or more other coun-

tries 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, never-

theless owes permanent allegiance to a

nation. Citizens of the United States are

those persons who are citizens in accor-

dance 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 out-

lying possessions of the United States; in

addition, all U.S. citizens are also

nationals of the United States. See 8

U.S.C. 1101.

 

[1984]


 

1100-3

 

1102 Definitions. (cont'd)

 

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 Dupli-

cation 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 effec-

tively 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 juris-

diction 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

for 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.

 

[1984]


 

1100-4

 

1102 Definitions. (cont'd)

 

02.08 United States. (cont'd)

 

02.08(b) Other territorial areas. Other terri-

torial 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 posses-

sions 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 Uni-

versal copyright Convention (UCC) is a

multilateral treaty on copyright to which

the United States and a considerable number

of other nations have adhered. The origi-

nal 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 eligibi-

lity. 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 regis-

tration.

 

[1984]


 

1100-5

 

1103 Statutory provisions. (cont'd)

 

1103.01 Unpublished works. The work of any author,

while unpublished, is eligible for regis-

tration 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 I, 1978, is

eligible for registration as a published

work only if it meets at least one of the

following conditions.

 

103.02(a) U.S. national or domiciliary. On the

date of first publication, one or more

of the authors is a national or domici-

liary of the United States. 17 U.S.C.

104(b)(I).

 

103.02(b) Foreign national or domiciliary. On

the date of first publication, one or

more authors is a national, domicili-

ary, 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)(I). See section 1104 below.

 

103.02(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 pub-

lication, 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.

 

[1984]


 

1100-6

 

1103 Statutory provisions. (cont'd)

 

1103.02 Published works. (cont'd)

 

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 organizations

'be the author, copyright claimant, or

copyright owner, but only that the work

be first published by one such organi-

zation.

 

1103.02(g) Presidential proclamation. The work

comes within the scope of a presiden-

tial proclamation. 17 U.S.C. 104(b)

(4). See section 1105 below.

 

1103.03 Copyright law extended to certain terri-

tories. 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 coypyright 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 Conven-

tion, effective June 30, 1908, El Salvador

 

[1984]


 

1100-7

 

1104 Multilateral copyright treaties to which the

United States is a party. (cont'd)

 

1104.01 Mexico City Convention of 1902. (cont'd)

 

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 copy-

right 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. Con-

cerning 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.I.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.

 

[1984]


 

1100-8

 

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 protec-

tion to works of which one or more of the

authors is, on the date of first publica-

tion, a national, domiciliary, or sover-

eign 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.

 

l105.02 Continuance of earlier proclamations. The

current law provides that all proclamations

issued by the President under section l(e)

or 9(b) of title 17 as it existed on Decem-

ber 31, 1977, or under previous copyright

statutes of the United States, shall con-

tinue in force until terminated, suspended,

or revised by the President. See section

104, Transitional and Supplementary Pro-

visions of the current Act.

 

1105.03 Coverage of earlier proclamation.

Presidential proclamations issued before

January I, 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 pro-

claimed nation. See 17 U.S.C. l(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 rela-

tions between the United States and a partic-

ular 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.

 

[1984]


 

1100-9

 

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.

 

[1984]


 

1100-10

 

1108 Authors: particular situations. (cont'd)

 

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 artifi-

cial person or legal entity, such as a

corporation or similar organization, the

nationality and domicile of such an organi-

zation, 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 jurisdic-

tion 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.

 

ll08.05 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.

 

[1984]


 

1100-11

 

1108 Authors: particular situations. (cont'd)

 

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 publica-

tion 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 domi-

cile 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 orga-

nized territories, does not confer eligi-

bility 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, eligi-

bility 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.

 

[1984]


 

1100-12

 

1108 Authors: particular situations. (cont'd)

 

1108.10 First publication after dearth 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 domi-

cile 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 publica-

tion 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 citi-

zenship and domicile remain unchanged,

registration of the claim in the pub-

lished 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 publica-

tion 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.

 

[1984]


1100-13

 

1109 Time when eligibility is determined. (cont'd)

 

1109.03 Works distributed only in the form 0!

phonorecords before 1978. Where musical,

dramatic or literary works were publicly

distributed before January I, 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 I, 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 I,

1978, and it is the nationality or domicile

of the author on that date which determines

eligibility. Eligibility may also be con-

ferred 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 desig-

nate 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 subdivi-

sion, 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

Swiss

Great Britain

French

Wales

 

Examples of unacceptable statements:

 

British Protected Person

Commonwealth Citizen

 

[1984]


100-14

 

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

 

[1984]


1100-15

 

1111 Some general examples illustrating basic principles. (cont'd

 

4) (cont'd)

 

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]

 

[1984]

 


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