“Nationally Ineligible” Works: Ineligible for Copyright and the Public Domain

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In recent years, debates have arisen over pulling works from the public domain and delaying entry of works to the public domain. In the 1990s, United States legislation restored copyright protection to certain categories of foreign works, apparently tearing these works from the U.S. public domain. One of these categories consisted of works that were previously unprotected in the United States due to the author’s lack of national eligibility to gain U.S. copyright protection. In light of recent debates and case law surrounding separation of works from the public domain, this Note spotlights the characterization of these “nationally ineligible” works as “in the public domain.” It examines the reasons why nationally ineligible works are more properly considered unprotected by copyright, but not “in the public domain,” even though the “restoration” legislation might initially appear to place them “in the public domain.” The Note concludes by emphasizing that this clarification is important to mitigate confusion in the debates surrounding the public domain.