It’s almost August, signaling time to really kick back and relax in Europe. In the U.S., it’s time to buy back-to-school supplies. Vive la différence!  In our last post, we looked at the significance of July 18th in Spanish history and copyright law and examined how the works of the prolifically gifted poet and playwright Federico Garcia Lorca passed into the public domain in Spain in January 2017 yet remain protected in the United States. What happened in August 1936 in Granada and in 1995 in the U.S. to create this surprising outcome?

Lorcas Execution; Term of Copyright in Spain

We recounted last time how Lorca celebrated his saint’s day at his family home outside of Granada on July 18, 1936 in a climate of increasing political unrest. By late July, local army garrisons sympathetic to General Francisco Franco’s Nationalist Movement took control of the city and province of Granada. Lorca’s brother-in-law had been arrested earlier that month for his Republican sympathies. Alarmed at these developments, Lorca sought refuge in the home of friend and poet Luis Rosales whose brothers were leading members of the Nationalist Movement; despite the Rosales family’s efforts to shield him, Lorca was arrested on August 16th. The Lorca family sought to hire a lawyer to defend him against the trumped-up charges of subversion and Bolshevik connections. No such trial was scheduled. Instead, Lorca was secreted away from the Granada jail the following day and taken to a makeshift prison in the countryside. Together with other political prisoners, he was shot by firing squad in the open air in the predawn hours of August 18, 1936. (As there were no sympathetic surviving eyewitnesses, the date is debated by scholars; perhaps it was August 19th.) Lorca’s remains have never been definitively identified.

During Lorca’s lifetime, copyright for literary works was governed by Spain’s 1879 Copyright Act which treated copyright as a type of property similar to the French approach of the late 18th century. Copyright in Spain was absolute and exclusive: unauthorized uses of protected works would establish liability for a user, although penalties were not clearly delineated. Spain signed the Berne Convention in 1886 which extended reciprocal protections for nationals of Berne member countries without the need for formalities; works by Spanish nationals, however, remained governed by the 1879 Copyright Act which required registration and publication to secure copyright protection.  As we saw previously, Lorca dutifully registered his literary works with the Registro Nacional, including copies of his dramatic manuscripts.  (Dramatic works that were publicly performed with the permission of the author did not require print publication in order to be protected.) The term of protection under the 1879 Copyright Act was 80 years from the death of the author. Thus, all of Lorca’s works — whether the precocious Libro de Poemas published when Lorca was only 23 years old or Blood Wedding performed in 1933 — were entitled to a term of copyright protection of “life plus 80” years.  That Lorca was aware of his rights can be inferred from his membership in the Spanish collecting society, Sociedad de Autores Y Editores (SAE) which managed the remuneration for exploitation of authors’ works during the term of protection. Lorca enrolled in SAE 1932 in the categories of composer, author and dramatic author, evidence of his multifaceted talents and his attentiveness to his rights.

Lorca’s life was cut short prematurely. Thanks to the unusually long term of protection for copyright in Spain, his literary and dramatic works remained protected in Spain for many years after his untimely death. When Spain enacted a new copyright law after the end of the Franco regime and the restoration of democracy, this long term was preserved for works created under the 1879 Act whose authors had died prior to December 7, 1987. Authors who died after that date and authors who created works under the new 1987 Copyright Act would enjoy a term of protection of “life plus 70” years. Under Spain’s Copyright Act of 1996 which brought it into line with the then European Community (later European Union) copyright regimes, a term of protection lapses on January 1st of the year following the year in which an author dies. Hence the significance of January 1, 2017 for the passage of the works of Lorca into the public domain in Spain.

Restoration of works under the URAA

But across the Atlantic, other developments conspired to create the means for Lorca’s works to remain under copyright protection for an even longer time. In connection with the U.S. bid to join the World Trade Organization (WTO), President Bill Clinton signed into law the Uruguay Round Agreements Act (URAA), effective January 1, 1995.  The URAA added a new Section 104(A) to the U.S. Copyright Act under the title “Copyright in Restored Works.”  This new law restored to copyright protection those foreign works (created by non-U.S. authors) that had fallen into the public domain in the U.S. for any number of reasons, but that were still protected in their source country. Failure to comply with copyright formalities required in the U.S., such as registration, renewal after a first term of 28 years, or affixation of proper copyright notice was a qualifying reason.  Importantly, under the URAA, a “restored work” must not have been in the public domain in its source country due to expiration of copyright term. Once restored to copyright in the U.S., an eligible work would enjoy copyright protection for the remainder of the term that the work would have otherwise been granted if the work had not entered the public domain in the U.S. The rule applied under the URAA called for a term of 75 years from the date of first publication of the work, later extended to 95 years, as explained below.

Spanish works became eligible for restored protection in the U.S. as of January 1, 1996, the date established in the public law enacting the URAA for those countries that had both adopted the Berne Convention and joined the WTO. Spain satisfied both conditions. (Restoration was not available if a work had already enjoyed its full term of protection in the U.S., such as works that had been registered and properly renewed in the U.S. under the 1909 Copyright Act and run their course for 56 years.) In the case of Lorca, it was presumed that all his works were still under protection in Spain as of January 1, 1996. As part of its 1987 Copyright Act, Spain provided for automatic recovery of all works that had fallen into the public domain due to lack of compliance with formalities required under Spain’s 1879 Copyright Act. Thus, even if some works had not complied with Spanish formalities before Lorca met his death, such works would have been restored to protection in Spain by virtue of the 1987 Act and were therefore eligible for later restoration in the U.S. under the URAA.

The URAA provided a scheme whereby foreign copyright owners could provide notice of their intention to restore protection in works that had likely been exploited by third parties during a time when they were understood to be in the public domain in the U.S.  Those third parties were called reliance parties, and the notice required to be filed by those seeking restoration was called the Notice of Intent or NOI. A 24-month window from January 1, 1996 was provided for foreign owners from Berne and WTO member countries to enforce their rights against reliance parties by publishing a NOI in the Federal Register. Through a British attorney, the Lorca heirs duly filed a NOI on May 8, 1997 with the U.S. Copyright Office with respect to 16 dramatic works by Lorca. (Other notices were filed later that year to restore protection to Lorca’s poems and compositions.) Blood Wedding was the first listed dramatic work and the one by which the May 8th NOI is filed and catalogued.  By this filing, the heirs gave notice to publishers, producers, filmmakers, theaters, and others that they were reclaiming exclusive rights in the listed works. Any reliance parties had a limited time under the statute to continue their exploitation of the listed works before either discontinuing use or negotiating terms with the heirs to continue exploitation. Going forward, the exclusive rights to authorize translations, adaptations, publications, derivative works, to perform any plays or broadcast any readings of poetry or musical adaptations would require the prior permission of the heirs.

Fast Track Legislation for WTO Membership and Unforeseen Consequences

Surprisingly, there is no provision in the URAA that would curtail the term of copyright protection granted to a restored work if the term of protection in the country of origin (or source country as it was called in the URAA) is shorter that the term in the U.S. The legislative history of the URAA seems to suggest that, in adopting the restoration provisions, Congress was primarily motivated by a desire not to allow the U.S. to become subject to a WTO dispute resolution mechanism for failure to comply with the terms of the new trade agreement on intellectual property that accompanied the WTO, the Agreement on Trade-Related Aspects of intellectual Property Rights (TRIPS Agreement). The TRIPS Agreement mandated that all WTO members be fully compliant with the Berne Convention. The Berne Convention, in turn, required abolition of formalities in copyright protection.  In enacting the URAA, Congress discharged its commitment to abide by the TRIPS Agreement and thereby avoided the specter of a WTO proceeding against the U.S. in its early years. The policy intent appears to have been to harmonize the years of protection for restored works to what was available for works by U.S. authors. The language of the URAA was not negotiated or disturbed by Congress from the text presented to it by the Office of the U.S. Trade Representative which oversaw the U.S. entry into the WTO.  Rather, the URAA was adopted as whole cloth in the WTO membership “package” that Congress approved as part of its “fast track” authorization authority. The fact that anomalies might crop up in certain cases in ensuing years did not appear to dissuade US legislators from adopting a simple and (what they saw as a) straightforward approach to restoration of term of protection. In doing so, Congress ignored the “rule of the shorter” term which is permissible under the Berne Convention. If Congress had adopted the rule of the shorter term, the duration of restored U.S. copyrights would have lasted only until the expiration of terms in the respective source countries. Instead, the URAA restored protection in foreign works for the full term of U.S. copyright protection.  At the time URAA was enacted into law, works that would have been in their renewal terms would be entitled under Section 304 (b) to a term of 75 years from the date copyright was originally secured. This period was extended again a few years later for an additional 20 years under the Sonny Bono Term Extension Act, signed into law by President Bill Clinton in late October, 1998.  For works created under the 1909 Act, or foreign works created during the time period governed by the 1909 Act (until January 1, 1978), the starting marker date for calculating the term of protection would be the date of first publication of the work.

As a result, some foreign works created in the 1920s and 1930s, including those by Lorca, enjoy a longer term of protection in the U.S. because of restoration than they would have enjoyed at home. For Bodas de Sangre (Blood Wedding,) Lorca’s stirring drama of love and revenge first published in 1933, protection will run in the U.S. until 2028. For La Casa de Bernarda Alba (The House of Bernarda Alba), first published in Madrid to good reviews in the spring before Lorca’s untimely death, the lapse date for U.S. copyright protection would likely be 2031.

It would be an interesting mid-summer exercise to examine the lists of works restored under URAA –including many classic films from Italy, Spain, France, Argentina and Russia and numerous Czech and Russian musical compositions — to determine how many noteworthy works with publication dates after 1923 are thought to be in the public domain in the U.S., but in fact, remain protected under URAA’s very wide umbrella.

This copyright challenge is not for the faint of heart. It definitely calls for another glass of sangria! But don’t forget the cheese.

Next time, we’ll look at the worldwide advance in protections for geographical indications to be enforced as part of new EU trade agreements to which the U.S. is not a party. Love your California Feta or Wisconsin Asiago but traveling abroad? You may be surprised by developments in Canada, Japan, China and the Mercosur countries.

This blog piece is adapted from the article “Federico Garcia Lorca: The Paradox of Duration of Copyright by the author that appeared in the Journal of the Copyright Society of the USA, Vol. 65, No. 1, Winter 2018.

 

L Fishman

Lois R. Fishman is founder of the Law Office of Lois R. Fishman, a transactional law practice in Los Angeles, CA focusing on copyright, publishing, technology, entertainment, trademark and non-profit law. She was previously Assistant General Counsel with The Walt Disney Company handling…

Lois R. Fishman is founder of the Law Office of Lois R. Fishman, a transactional law practice in Los Angeles, CA focusing on copyright, publishing, technology, entertainment, trademark and non-profit law. She was previously Assistant General Counsel with The Walt Disney Company handling a variety of matters involving digital content. She graduated from Yale College and Georgetown University Law Center and currently teaches at Chapman University’s Fowler School of Law. She has familiarity with international intellectual policy matters as well as administrative proceedings before the Trademark Trial and Appeal Board, the Federal Trade Commission, and the Federal Communications Commission.