Soviet copyright law

Wed Mar 9 02:27:52 UTC 2005

I just subscribed to the listserv, having learned that 
copyright issues were being discussed. First I would like to 
support Michael Newcity’s explanation, which is authoritative 
and completely accurate. As a librarian, I have been doing 
research on Slavic and East European copyright issues for 
several years, and currently serve as chair of the AAASS 
Bibliography and Documentation Working Group on Copyright 
Issues. I would like to offer the following as a complement 
to Michael's reply. It is based on a standard reply I send on 
copyright queries involving the Russian Federation, and 
contains much of the same information.

The question of copyright protection for pre-1973 materials 
created and/or published in the former USSR is one that 
continues to cause confusion. Major changes in global and 
national legislation (both U.S. and Russian Federation) in 
the 1990s have changed the situation, and it is much more 
complicated now.

The date of May 27, 1973 was the date that the Universal 
Copyright Convention came into effect with respect to both 
the USSR and the U.S., establishing reciprocal copyright 
relations between the two nations, but that date can no 
longer be used as a dividing line between Soviet works that 
are copyright-protected and Soviet works that are in the 
public domain in the U.S. today.

This is because on March 13, 1995 the Berne Convention became 
effective for both the Russian Federation and the U.S. 
(Russia joined on that date, the U.S. has been a member since 
March 1, 1989). Berne supersedes the UCC, and it also 
mandates, in Article 18, restoration of copyright 
protection to works that "have not fallen into the public 
domain in the country of origin through the expiry of the 
term of protection," at the moment of the coming into force 
of the convention with respect to a new member state (in this 
case, Russia, since the U.S. joined first). The Berne 
Convention requires compliance with Article 18, and there is 
strict enforcement of this provision under the TRIPS 
Agreement.

The TRIPS Agreement, which took effect for developed 
countries on January 1, 1996, requires the U.S. to fulfill 
its obligations with respect to copyright as a member of the 
WTO. The U.S. implemented TRIPS as part of the Uruguay Round 
Agreements Act of 1994 by amending the 1976 Copyright Act.

The U.S. was required to restore copyright on January 1, 1996 
to eligible works that had "not fallen into the public domain 
in the country of origin through the expiry of the term of 
protection" on that date in member Berne nations, and to 
protect them for the full U.S. term. Helpful charts 
summarizing U.S. copyright terms have been prepared by Laura 
Gasaway and Peter Hirtle, and are available at  
http://www.unc.edu/~unclng/public-d.htm and 
http://www.copyright.cornell.edu/ 
training/Hirtle_Public_Domain.htm.

If the author's death, or the publication date, 
depending on the category of work, occurred such that the 
work was protected on January 1, 1996 in Russia, then the 
work was restored in the U.S. for the full U.S. term. If, 
after looking at the charts, you find that it is still 
protected today, you will have to seek permissions to use the 
work, unless a case can be made for fair use, under section 
107 of U.S. copyright law, or unless the use falls under 
another copyright exemption in the U.S., such as for library 
preservation copies under Section 108, or the provisions of 
Section 109 or 110.

Take, for example, the works of Mikhail Bakhtin. Bakhtin 
died in 1975, thus his works never fell into the public 
domain in the USSR or Russian Federation. They were protected 
in the Soviet Union throughout his life, and are still 
protected in the Russian Federation. This is because the 1928 
copyright law of the USSR established a term for written 
works as life of the author plus 15 years; in 1973 that 
was extended to life plus 25 years. In 1992 the Russian 
Federation extended the term for life of the author 
plus 50 or 54 years, and adopted that term in its 1993 
copyright law, which was amended in 2004 to a term of 70 or 
74 years. Thus Bakhtin's works never fell into the 
public domain in the Soviet Union or Russian Federation, and 
were protected in Russia on January 1, 1996 when the TRIPS 
Agreement became effective for the U.S. 

There is no question that Bakhtin's works originating in the 
Soviet Union after 1923 are protected in the U.S. today. His 
work Problems of Dostoevsky’s Poetics, published in 1929, 
was protected in Russia on January 1, 1996 and is therefore 
protected in the U.S. protected in the U.S. for 95 years from 
publication, through 2024.

There are other situations in which a copyright expired at 
some point in the USSR, but was "re-protected" by the 1993 
copyright law of the Russian Federation, which granted terms 
longer than those under Soviet law and was considered 
retroactive. Many older works produced in the USSR, on which 
copyright had expired in the USSR, were "re-protected" by the 
1993 Russian copyright law, and so, being protected in Russia 
on January 1, 1996, they had their copyright restored in the 
U.S. as well. This includes a very large number of pre-1973 
works.

It is true that there is still some legal uncertainty as to 
whether works that had expired in the country of origin and 
then were "re-protected" there, are protected by the 
retroactive provisions of the Berne Convention and TRIPS. To 
my knowledge, there is no case law on this yet 
internationally. (Michael, if I am wrong here, please do not 
hesitate to point it out.) But in my opinion, it is very 
important to treat the works as if they are protected, 
applying the U.S. term of protection to them, until a legal 
precedent has been set. Copyright law is moving in the 
direction of greater and longer protection, and enforcement 
of new laws internationally, so it is best to take the safe 
route.

An example of this so-called ambiguity involves the following 
situation. Russian literary historian and theorist Boris 
Eikhenbaum died in 1959. His work Literature: Theory, 
Criticism, Polemic was first published in 1927. It entered 
the public domain in the USSR in 1984, 25 years after his 
death, and remained there from 1984-1992, when Russia 
established a copyright term of life plus 50 or 54 years, 
extended in 2004 to life plus 70 or 74 years. So it was 
protected in Russia on January 1, 1996, and is now protected 
in Russia through 2029, 70 years after his death. It would 
appear that the work was eligible for copyright resoration, 
but because of ambiguity in the wording of Berne Article 18, 
combined with Russia's "retroactive" 1993 copyright law, we 
are waiting for case law to resolve the question 
definitively. The U.S. term for this work is 95 years from 
publication, through 2022.

Another interesting example is that of Bulgakov's The Master 
and Margarita, written in the years before Bulgakov's death 
in 1940, and first published in Moscow in the journal Moskva 
in 1966-67. The term of protection for posthumously published 
works in Russia is now 70 years from publication. This means 
that The Master and Margarita is protected in Russia through 
2037. Since it was protected in Russia on January 1, 1996, 
the novel is protected in the U.S. for 95 years from 
publication, through 2062. 

In summary, this means that to be safe, you should consider a
pre-1973 Soviet/Russian work is to be protected like any 
other U.S. work, and you should apply the appropriate U.S. 
term of protection. Using the charts is a quick and easy way 
to determine the copyright terms that apply for use of 
Soviet works in the U.S.

As for movies, the laws apply in the same way, but 
identifying "authors" and copyright holders of films is even 
more difficult than with texts, and for that reason 
determining copyright terms is more difficult as well. "Fair 
use" applies to Soviet films being used in the U.S. as it 
does to textual works. But Michael Newcity's advice that each 
individual work's status must be determined on a case-by-case 
basis is no understatement. 

A final comment on the issue of copyright restoration is that 
it is being taken seriously in U.S. courts. Several cases in 
recent years validated restoration under Section 104a of the 
U.S copyright law. 

I'll stop here. The point is to say that 1973 is no longer a 
dividing line between works that may be used freely in the 
U.S. and works that require permissions. Copyright is far 
more complicated now, and there is not always a clear answer, 
but at least it helps to know why.

All for now,

Janice Pilch
----------------------------------------
Janice T. Pilch, Assistant Professor of Library Administration
Acting Head, Acquisitions, Slavic and East European Library
Librarian for South Slavic Studies and Slavic Languages & Literatures
University of Illinois at Urbana-Champaign
1408 West Gregory Drive, Urbana, IL 61801
Tel. (217) 244-9399  E-mail: pilch at uiuc.edu