Restoration of Copyrights
Abstract In 1994, Congress enacted 17 U.S.C. section 104A, amending the 1976 Copyright Act to provide for the automatic restoration of copyrights in certain foreign works previously in the public domain in the United States. Implemented in order to bring the United States into compliance with the Berne Convention, section 104A from its very beginning was a controversial amendment. Although a number of commentators have questioned its constitutional underpinnings (e.g., Professors Lessig, Jaszi and Okediji), more than a decade later section 104A survives, its constitutionality upheld in two recent decisions. As other commentators (e.g., Professor Nimmer) have already noted, section 104A is inordinately complicated. The language of section 104A is often ambiguous, at times indecipherable and has already required several clarifying amendments in order to render it coherent. Enacted as “fast track” legislation, scant legislative history exists and thus courts and litigants are largely on their own when interpreting section 104A. While there are now a number of section 104A decisions on the books, "Dueling Trolls and Other Oddities" is the first and only scholarship to analyze the statute and those decisions in detail. Mr. Gable concludes that courts are often misapplying the statute due to incomplete or inaccurate applications of foreign law; inadequate factual records or findings of fact to conclusively establish or dispute required elements; or erroneous interpretations or applications of various provisions in section 104A. Courts are vesting copyright “owners” with restored copyrights that were intended under the statute to be granted to those works’ “authors.” Courts are hastily concluding that works entered the public domain without first establishing that divestive publication occurred. Courts are paying insufficient attention to the circumstances in which copyright notices were affixed or not affixed to published works (since publication abroad without notice did not always result in loss of copyright). One court has permitted certain defendants ongoing uses of restored works when those uses are prohibited under the statute. One circuit court has denied a plaintiff restoration for apparently eligible works, based upon a misinterpretation of the statute. The same court found a defendant liable for copyright infringement when the evidence suggested the defendant’s ongoing use of the restored work was permitted under section 104A. Discussing all key 104A provisions, referencing all reported section 104A decisions, "Dueling Trolls and Other Oddities" offers numerous insights into the application and interpretation of the statute, highlighting those provisions Bill Gable believes may warrant further clarification by Congress or the Copyright Office. The article was intended to inspire further scholarly discussion of section 104A and to provide a roadmap to courts and litigants in understanding and applying the statute, which lies at the frontier of international copyright law, custom and practice.
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