B. Issues Related to Notices of Intent To Enforce

1.  Formality

Ms. Shaughnessy stated that since copyright restoration is to occur automatically, the procedures for filing NIEs are exceptionally onerous.  She asserted it should be sufficient to file one NIE for all of the titles of one author.  Ms. Shaughnessy illustrated her point by noting that she will be filing for 73 authors, but there will be hundreds of titles involved.  Comment 3.  Ms. Lorente asserted that the NIE is a formality in violation of at least the spirit of Berne and that because reliance parties are free to continue to exploit restored works in the United States unless a NIE is filed, an author cannot exercise his or her rights in the restored work automatically.  Comment 5, at 1.

The Copyright Office again emphasizes that the restoration of copyright in certain foreign works considered in the public domain in the United States creates a conflict between reliance parties’ and copyright owners’ legitimate concerns.  Reliance parties have invested capital and labor in the lawful exploitation of public domain property; the sudden restoration of copyright divests them of these investments.  Without some provision addressing this potential loss, there could be challenges based on the ``taking’’ clause of the Fifth Amendment of the U.S.  Constitution.  On the other hand, it is important that the United States restore copyright protection in certain foreign works.  The United States arguably failed to conform its law fully to the Berne Convention in 1989 when it declined to interpret Article 18(1) on restoration SUP5 as being mandatory.  The U.S.  Justice Department in its review of the URAA legislation concluded that under existing precedents interpreting the Fifth Amendment, the Notice of Intent to Enforce the Restored Copyright avoided an unconstitutional ``taking.’’ SUP6 Thus, the Justice Department considered these provisions as critical.

\5\ This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.  Berne Convention art. 18(1)(Paris text).

\6\ See Memorandum from Chris Schroeder, Counsellor to the Assistant Attorney General, Office of Legal Counsel, United States Dept. of Justice to Ira S. Shapiro, General Counsel, USTR, on Whether Certain Copyright Provisions in the Draft Legislation to Implement the Uruguay Round of Multilateral Trade Negotiations Would Constitute a Taking Under the Fifth Amendment (July 29, 1994).

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We believe that such a filing is not inconsistent with the Berne Convention because Article 18(3) SUP7 of the Berne Convention specifically permits member nations to determine ``conditions’’ for applying the principles of restoration.  Copyright restoration occurs automatically; the URAA merely creates a narrow set of conditions requiring notification to reliance parties.  Moreover, the information sought on the NIEs is calculated to assist in the voluntary licensing of the restored work.  The decision of Congress to enact these provisions is, therefore, supported by the legitimate interests of both reliance parties and copyright owners, by constitutional considerations, and by Article 18(3) of the Berne Convention.