Page 11 TITLE 17— § 102 and 373 of Title 35, , enacting provisions set out a different phrase—‘‘original works of authorship’’—in as notes under section 1052 of Title 15 and sections 104 characterizing the general subject matter of statutory and 154 of Title 35, and amending provisions set out as protection. a note under section 109 of this title]— The history of copyright law has been one of gradual ‘‘(1) the term ‘WTO Agreement’ has the meaning expansion in the types of works accorded protection, given that term in section 2(9) of the Uruguay Round and the subject matter affected by this expansion has Agreements Act [19 U.S.C. 3501(9)]; and fallen into two general categories. In the first, sci- ‘‘(2) the term ‘WTO member country’ has the mean- entific discoveries and technological developments ing given that term in section 2(10) of the Uruguay have made possible new forms of creative expression Round Agreements Act.’’ that never existed before. In some of these cases the new expressive forms—electronic music, filmstrips, and § 102. Subject matter of copyright: In general computer programs, for example—could be regarded as an extension of copyrightable subject matter Congress (a) Copyright protection subsists, in accord- had already intended to protect, and were thus consid- ance with this title, in original works of author- ered copyrightable from the outset without the need of ship fixed in any tangible medium of expression, new legislation. In other cases, such as photographs, now known or later developed, from which they sound recordings, and motion pictures, statutory en- can be perceived, reproduced, or otherwise com- actment was deemed necessary to give them full rec- municated, either directly or with the aid of a ognition as copyrightable works. machine or device. Works of authorship include Authors are continually finding new ways of express- ing themselves, but it is impossible to foresee the the following categories: forms that these new expressive methods will take. The (1) literary works; bill does not intend either to freeze the scope of copy- (2) musical works, including any accompany- rightable subject matter at the present stage of com- ing words; munications technology or to allow unlimited expan- (3) dramatic works, including any accom- sion into areas completely outside the present congres- panying music; sional intent. Section 102 implies neither that that sub- (4) pantomimes and choreographic works; ject matter is unlimited nor that new forms of expres- (5) pictorial, graphic, and sculptural works; sion within that general area of subject matter would necessarily be unprotected. (6) motion pictures and other audiovisual The historic expansion of copyright has also applied works; to forms of expression which, although in existence for (7) sound recordings; and generations or centuries, have only gradually come to (8) architectural works. be recognized as creative and worthy of protection. The first copyright statute in this country, enacted in 1790, (b) In no case does copyright protection for an designated only ‘‘maps, charts, and ’’; major original work of authorship extend to any idea, forms of expression such as music, drama, and works of procedure, process, system, method of operation, art achieved specific statutory recognition only in concept, principle, or discovery, regardless of later enactments. Although the coverage of the present the form in which it is described, explained, il- statute is very broad, and would be broadened further lustrated, or embodied in such work. by the explicit recognition of all forms of choreog- raphy, there are unquestionably other areas of existing (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. subject matter that this bill does not propose to pro- 2544; Pub. L. 101–650, title VII, § 703, Dec. 1, 1990, tect but that future Congresses may want to. 104 Stat. 5133.) Fixation in Tangible Form. As a basic condition of copyright protection, the bill perpetuates the existing HISTORICAL AND REVISION NOTES requirement that a work be fixed in a ‘‘tangible me- HOUSE REPORT NO. 94–1476 dium of expression,’’ and adds that this medium may be one ‘‘now known or later developed,’’ and that the fixa- Original Works of Authorship. The two fundamental tion is sufficient if the work ‘‘can be perceived, repro- criteria of copyright protection—originality and fixa- duced, or otherwise communicated, either directly or tion in tangible form are restated in the first sentence with the aid of a machine or device.’’ This broad lan- of this cornerstone provision. The phrase ‘‘original guage is intended to avoid the artificial and largely un- works or authorship,’’ which is purposely left unde- justifiable distinctions, derived from cases such as fined, is intended to incorporate without change the White-Smith Co. v. Apollo Co., 209 U.S. 1 (1908) standard of originality established by the courts under [28 S.Ct. 319, 52 L.Ed. 655], under which statutory the present copyright statute. This standard does not copyrightability in certain cases has been made to de- include requirements of novelty, ingenuity, or esthetic pend upon the form or medium in which the work is merit, and there is no intention to enlarge the standard fixed. Under the bill it makes no difference what the of copyright protection to require them. form, manner, or medium of fixation may be—whether In using the phrase ‘‘original works of authorship,’’ it is in words, numbers, notes, sounds, pictures, or any rather than ‘‘all the writings of an author’’ now in sec- other graphic or symbolic indicia, whether embodied in tion 4 of the statute [section 4 of former title 17], the a physical object in written, printed, photographic, committee’s purpose is to avoid exhausting the con- sculptural, punched, magnetic, or any other stable stitutional power of Congress to legislate in this field, form, and whether it is capable of perception directly and to eliminate the uncertainties arising from the lat- or by means of any machine or device ‘‘now known or ter phrase. Since the present statutory language is sub- later developed.’’ stantially the same as the empowering language of the Under the bill, the concept of fixation is important Constitution [Const. Art. I, § 8, cl. 8], a recurring ques- since it not only determines whether the provisions of tion has been whether the statutory and the constitu- the statute apply to a work, but it also represents the tional provisions are coextensive. If so, the courts dividing line between and statutory pro- would be faced with the alternative of holding copy- tection. As will be noted in more detail in connection rightable something that Congress clearly did not in- with section 301, an unfixed work of authorship, such as tend to protect, or of holding constitutionally incapa- an improvisation or an unrecorded choreographic work, ble of copyright something that Congress might one performance, or broadcast, would continue to be sub- day want to protect. To avoid these equally undesirable ject to protection under State common law or statute, results, the courts have indicated that ‘‘all the writings but would not be eligible for Federal statutory protec- of an author’’ under the present statute is narrower in tion under section 102. scope than the ‘‘writings’’ of ‘‘authors’’ referred to in The bill seeks to resolve, through the definition of the Constitution. The bill avoids this dilemma by using ‘‘fixation’’ in section 101, the status of live broadcasts— § 102 TITLE 17—COPYRIGHTS Page 12 sports, news coverage, live performances of music, encompass works coming within some or all of the etc.—that are reaching the public in unfixed form but other categories. In the aggregate, the list covers all that are simultaneously being recorded. When a foot- classes of works now specified in section 5 of title 17 ball game is being covered by four television cameras, [section 5 of former title 17]; in addition, it specifically with a director guiding the activities of the four cam- enumerates ‘‘pantomimes and choreographic works’’. eramen and choosing which of their electronic images Of the seven items listed, four are defined in section are sent out to the public and in what order, there is 101. The three undefined categories—‘‘musical works,’’ little doubt that what the cameramen and the director ‘‘dramatic works,’’ and ‘‘pantomimes and choreo- are doing constitutes ‘‘authorship.’’ The further ques- graphic works’’—have fairly settled meanings. There is tion to be considered is whether there has been a fixa- no need, for example, to specify the copyrightability of tion. If the images and sounds to be broadcast are first electronic or concrete music in the statute since the recorded (on a video tape, film, etc.) and then transmit- form of a work would no longer be of any importance, ted, the recorded work would be considered a ‘‘motion nor is it necessary to specify that ‘‘choreographic picture’’ subject to statutory protection against unau- works’’ do not include social dance steps and simple thorized reproduction or retransmission of the broad- routines. cast. If the program content is transmitted live to the The four items defined in section 101 are ‘‘literary public while being recorded at the same time, the case works,’’ ‘‘pictorial, graphic, and sculptural works,’’ would be treated the same; the copyright owner would ‘‘motion pictures and audiovisual works’’, and ‘‘sound not be forced to rely on common law rather than statu- recordings’’. In each of these cases, definitions are tory rights in proceeding against an infringing user of needed not only because the meaning of the term itself the live broadcast. is unsettled but also because the distinction between Thus, assuming it is copyrightable—as a ‘‘motion pic- ‘‘work’’ and ‘‘material object’’ requires clarification. ture’’ or ‘‘sound recording,’’ for example—the content The term ‘‘literary works’’ does not connote any cri- of a live transmission should be regarded as fixed and terion of literary merit or qualitative value: it includes should be accorded statutory protection if it is being catalogs, directories, and similar factual, reference, or recorded simultaneously with its transmission. On the instructional works and compilations of data. It also other hand, the definition of ‘‘fixation’’ would exclude includes computer data bases, and computer programs from the concept purely evanescent or transient repro- to the extent that they incorporate authorship in the ductions such as those projected briefly on a screen, programmer’s expression of original ideas, as distin- shown electronically on a television or other cathode guished from the ideas themselves. ray tube, or captured momentarily in the ‘‘memory’’ of Correspondingly, the definition of ‘‘pictorial, graphic, a computer. and sculptural works’’ carries with it no implied cri- Under the first sentence of the definition of ‘‘fixed’’ terion of artistic taste, aesthetic value, or intrinsic in section 101, a work would be considered ‘‘fixed in a quality. The term is intended to comprise not only tangible medium of expression’’ if there has been an au- ‘‘works of art’’ in the traditional sense but also works thorized embodiment in a copy or phonorecord and if of graphic art and illustration, art reproductions, plans that embodiment ‘‘is sufficiently permanent or stable’’ and drawings, photographs and reproductions of them, to permit the work ‘‘to be perceived, reproduced, or maps, charts, globes, and other cartographic works, otherwise communicated for a period of more than works of these kinds intended for use in advertising transitory duration.’’ The second sentence makes clear and commerce, and works of ‘‘applied art.’’ There is no that, in the case of ‘‘a work consisting of sounds, im- intention whatever to narrow the scope of the subject ages, or both, that are being transmitted,’’ the work is matter now characterized in section 5(k) [section 5(k) regarded as ‘‘fixed’’ if a fixation is being made at the of former title 17] as ‘‘prints or labels used for articles same time as the transmission. of merchandise.’’ However, since this terminology sug- Under this definition ‘‘copies’’ and ‘‘phonorecords’’ gests the material object in which a work is embodied together will comprise all of the material objects in rather than the work itself, the bill does not mention which copyrightable works are capable of being fixed. this category separately. The definitions of these terms in section 101, together In accordance with the Supreme Court’s decision in with their usage in section 102 and throughout the bill, Mazer v. Stein, 347 U.S. 201 (1954) [74 S.Ct. 460, 98 L. Ed. reflect a fundamental distinction between the ‘‘original 630, rehearing denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed. work’’ which is the product of ‘‘authorship’’ and the 1096], works of ‘‘applied art’’ encompass all original pic- multitude of material objects in which it can be em- torial, graphic, and sculptural works that are intended bodied. Thus, in the sense of the bill, a ‘‘’’ is not to be or have been embodied in useful articles, regard- a work of authorship, but is a particular kind of less of factors such as mass production, commercial ex- ‘‘copy.’’ Instead, the author may write a ‘‘literary ploitation, and the potential availability of design pat- work,’’ which in turn can be embodied in a wide range ent protection. The scope of exclusive rights in these of ‘‘copies’’ and ‘‘phonorecords,’’ including books, peri- works is given special treatment in section 113, to be odicals, computer punch cards, microfilm, tape record- discussed below. ings, and so forth. It is possible to have an ‘‘original The Committee has added language to the definition work of authorship’’ without having a ‘‘copy’’ or of ‘‘pictorial, graphic, and sculptural works’’ in an ef- ‘‘phonorecord’’ embodying it, and it is also possible to fort to make clearer the distinction between works of have a ‘‘copy’’ or ‘‘phonorecord’’ embodying something applied art protectable under the bill and industrial de- that does not qualify as an ‘‘original work of author- signs not subject to copyright protection. The declara- ship.’’ The two essential elements—original work and tion that ‘‘pictorial, graphic, and sculptural works’’ in- tangible object—must merge through fixation in order clude ‘‘works of artistic craftsmanship insofar as their to produce subject matter copyrightable under the form but not their mechanical or utilitarian aspects statute. are concerned’’ is classic language; it is drawn from Categories of Copyrightable Works. The second sen- Copyright Office regulations promulgated in the 1940’s tence of section 102 lists seven broad categories which and expressly endorsed by the Supreme Court in the the concept of ‘‘works of authorship’’ is said to ‘‘in- Mazer case. clude’’. The use of the word ‘‘include,’’ as defined in The second part of the amendment states that ‘‘the section 101, makes clear that the listing is ‘‘illustrative design of a useful article * * * shall be considered a pic- and not limitative,’’ and that the seven categories do torial, graphic, or sculptural work only if, and only to not necessarily exhaust the scope of ‘‘original works of the extent that, such design incorporates pictorial, authorship’’ that the bill is intended to protect. Rath- graphic, or sculptural features that can be identified er, the list sets out the general area of copyrightable separately from, and are capable of existing independ- subject matter, but with sufficient flexibility to free ently of, the utilitarian aspects of the article.’’ A ‘‘use- the courts from rigid or outmoded concepts of the scope ful article’’ is defined as ‘‘an article having an intrinsic of particular categories. The items are also overlapping utilitarian function that is not merely to portray the in the sense that a work falling within one class may appearance of the article or to convey information.’’ Page 13 TITLE 17—COPYRIGHTS § 102

This part of the amendment is an adaptation of lan- As a class of subject matter, sound recordings are guage added to the Copyright Office Regulations in the clearly within the scope of the ‘‘writings of an author’’ mid-1950’s in an effort to implement the Supreme capable of protection under the Constitution [Const. Court’s decision in the Mazer case. Art. I, § 8, cl. 8], and the extension of limited statutory In adopting this amendatory language, the Commit- protection to them was too long delayed. Aside from tee is seeking to draw as clear a line as possible be- cases in which sounds are fixed by some purely mechan- tween copyrightable works of applied art and uncopy- ical means without originality of any kind, the copy- righted works of industrial design. A two-dimensional right protection that would prevent the reproduction , drawing, or graphic work is still capable of and distribution of unauthorized phonorecords of sound being identified as such when it is printed on or applied recordings is clearly justified. to utilitarian articles such as textile fabrics, wallpaper, The copyrightable elements in a sound recording will containers, and the like. The same is true when a stat- usually, though not always, involve ‘‘authorship’’ both ue or carving is used to embellish an industrial product on the part of the performers whose performance is cap- or, as in the Mazer case, is incorporated into a product tured and on the part of the record producer respon- without losing its ability to exist independently as a sible for setting up the recording session, capturing and work of art. On the other hand, although the shape of electronically processing the sounds, and compiling an industrial product may be aesthetically satisfying and editing them to make the final sound recording. and valuable, the Committee’s intention is not to offer There may, however, be cases where the record produc- it copyright protection under the bill. Unless the shape er’s contribution is so minimal that the performance is of an automobile, airplane, ladies’ dress, food proc- the only copyrightable element in the work, and there essor, television set, or any other industrial product may be cases (for example, recordings of birdcalls, contains some element that, physically or concep- sounds of racing cars, et cetera) where only the record tually, can be identified as separable from the utilitar- producer’s contribution is copyrightable. ian aspects of that article, the design would not be Sound tracks of motion pictures, long a nebulous copyrighted under the bill. The test of separability and area in American copyright law, are specifically in- independence from ‘‘the utilitarian aspects of the arti- cluded in the definition of ‘‘motion pictures,’’ and ex- cle’’ does not depend upon the nature of the design— cluded in the definition of ‘‘sound recordings.’’ To be a that is, even if the appearance of an article is deter- ‘‘motion picture,’’ as defined, requires three elements: mined by aesthetic (as opposed to functional) consider- (1) a series of images, (2) the capability of showing the ations, only elements, if any, which can be identified images in certain successive order, and (3) an impres- separately from the useful article as such are copy- sion of motion when the images are thus shown. Cou- rightable. And, even if the three-dimensional design pled with the basic requirements of original authorship contains some such element (for example, a carving on and fixation in tangible form, this definition encom- the back of a chair or a floral relief design on silver passes a wide range of cinematographic works em- flatware), copyright protection would extend only to bodied in films, tapes, video disks, and other media. that element, and would not cover the over-all configu- However, it would not include: (1) unauthorized fixa- ration of the utilitarian article as such. tions of live performances or telecasts, (2) live telecasts A special situation is presented by architectural that are not fixed simultaneously with their trans- works. An architect’s plans and drawings would, of mission, or (3) filmstrips and slide sets which, although course, be protected by copyright, but the extent to consisting of a series of images intended to be shown in which that protection would extend to the structure succession, are not capable of conveying an impression depicted would depend on the circumstances. Purely of motion. nonfunctional or monumental structures would be sub- On the other hand, the bill equates audiovisual mate- ject to full copyright protection under the bill, and the rials such as filmstrips, slide sets, and sets of trans- same would be true of artistic sculpture or decorative parencies with ‘‘motion pictures’’ rather than with ornamentation or embellishment added to a structure. ‘‘pictorial, graphic, and sculptural works.’’ Their se- On the other hand, where the only elements of shape in quential showing is closer to a ‘‘performance’’ than to an architectural design are conceptually inseparable a ‘‘display,’’ and the definition of ‘‘audiovisual works,’’ from the utilitarian aspects of the structure, copyright which applies also to ‘‘motion pictures,’’ embraces protection for the design would not be available. works consisting of a series of related images that are The Committee has considered, but chosen to defer, by their nature, intended for showing by means of pro- the possibility of protecting the design of typefaces. A jectors or other devices. ‘‘typeface’’ can be defined as a set of letters, numbers, Nature of Copyright. Copyright does not preclude oth- or other symbolic characters, whose forms are related ers from using the ideas or information revealed by the by repeating design elements consistently applied in a author’s work. It pertains to the literary, musical, notational system and are intended to be embodied in graphic, or artistic form in which the author expressed articles whose intrinsic utilitarian function is for use intellectual concepts. Section 102(b) makes clear that in composing text or other cognizable combinations of copyright protection does not extend to any idea, pro- characters. The Committee does not regard the design cedure, process, system, method of operation, concept, of typeface, as thus defined, to be a copyrightable ‘‘pic- principle, or discovery, regardless of the form in which torial, graphic, or sculptural work’’ within the meaning it is described, explained, illustrated, or embodied in of this bill and the application of the dividing line in such work. section 101. Some concern has been expressed lest copyright in Enactment of Public Law 92–140 in 1971 [Pub. L. computer programs should extend protection to the 92–140, Oct. 15, 1971, 85 Stat. 391, which amended sec- methodology or processes adopted by the programmer, tions 1, 5, 19, 20, 26, and 101 of former title 17, and en- rather than merely to the ‘‘writing’’ expressing his acted provisions set out as a note under section 1 of ideas. Section 102(b) is intended, among other things, to former title 17] marked the first recognition in Amer- make clear that the expression adopted by the pro- ican copyright law of sound recordings as copyrightable grammer is the copyrightable element in a computer works. As defined in section 101, copyrightable ‘‘sound program, and that the actual processes or methods em- recordings’’ are original works of authorship compris- bodied in the program are not within the scope of the ing an aggregate of musical, spoken, or other sounds copyright law. that have been fixed in tangible form. The copyright- Section 102(b) in no way enlarges or contracts the able work comprises the aggregation of sounds and not scope of copyright protection under the present law. Its the tangible medium of fixation. Thus, ‘‘sound record- purpose is to restate, in the context of the new single ings’’ as copyrightable subject matter are distinguished Federal system of copyright, that the basic dichotomy from ‘‘phonorecords,’’ the latter being physical objects between expression and idea remains unchanged. in which sounds are fixed. They are also distinguished from any copyrighted literary, dramatic, or musical AMENDMENTS works that may be reproduced on a ‘‘phonorecord.’’ 1990—Subsec. (a)(8). Pub. L. 101–650 added par. (8). § 103 TITLE 17—COPYRIGHTS Page 14

EFFECTIVE DATE OF 1990 AMENDMENT fringer from benefiting, through copyright protection, from committing an unlawful act, but preserves protec- Amendment by Pub. L. 101–650 applicable to any ar- tion for those parts of the work that do not employ the chitectural work created on or after Dec. 1, 1990, and preexisting work. Thus, an unauthorized translation of any architectural work, that, on Dec. 1, 1990, is uncon- a could not be copyrighted at all, but the owner structed and embodied in unpublished plans or draw- of copyright in an anthology of poetry could sue some- ings, except that protection for such architectural one who infringed the whole anthology, even though work under this title terminates on Dec. 31, 2002, unless the infringer proves that publication of one of the the work is constructed by that date, see section 706 of poems was unauthorized. Under this provision, copy- Pub. L. 101–650, set out as a note under section 101 of right could be obtained as long as the use of the pre- this title. existing work was not ‘‘unlawful,’’ even though the § 103. Subject matter of copyright: Compilations consent of the copyright owner had not been obtained. For instance, the unauthorized reproduction of a work and derivative works might be ‘‘lawful’’ under the doctrine of or an (a) The subject matter of copyright as speci- applicable foreign law, and if so the work incorporating fied by section 102 includes compilations and de- it could be copyrighted. rivative works, but protection for a work em- § 104. Subject matter of copyright: National ori- ploying preexisting material in which copyright gin subsists does not extend to any part of the work in which such material has been used unlaw- (a) UNPUBLISHED WORKS.—The works specified fully. by sections 102 and 103, while unpublished, are (b) The copyright in a compilation or deriva- subject to protection under this title without re- tive work extends only to the material contrib- gard to the nationality or domicile of the au- uted by the author of such work, as distin- thor. guished from the preexisting material employed (b) PUBLISHED WORKS.—The works specified by sections 102 and 103, when published, are subject in the work, and does not imply any exclusive to protection under this title if— right in the preexisting material. The copyright (1) on the date of first publication, one or in such work is independent of, and does not af- more of the authors is a national or domi- fect or enlarge the scope, duration, ownership, ciliary of the United States, or is a national, or subsistence of, any copyright protection in domiciliary, or sovereign authority of a treaty the preexisting material. party, or is a stateless person, wherever that (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. person may be domiciled; or 2545.) (2) the work is first published in the United States or in a foreign nation that, on the date HISTORICAL AND REVISION NOTES of first publication, is a treaty party; or HOUSE REPORT NO. 94–1476 (3) the work is a sound recording that was Section 103 complements section 102: A compilation first fixed in a treaty party; or or is copyrightable if it represents an (4) the work is a pictorial, graphic, or sculp- ‘‘original work of authorship’’ and falls within one or tural work that is incorporated in a building more of the categories listed in section 102. Read to- or other structure, or an architectural work gether, the two sections make plain that the criteria of that is embodied in a building and the building copyrightable subject matter stated in section 102 or structure is located in the United States or apply with full force to works that are entirely original a treaty party; or and to those containing preexisting material. Section (5) the work is first published by the United 103(b) is also intended to define, more sharply and Nations or any of its specialized agencies, or clearly than does section 7 of the present law [section by the Organization of American States; or 7 of former title 17], the important interrelationship (6) the work comes within the scope of a and correlation between protection of preexisting and of ‘‘new’’ material in a particular work. The most im- Presidential proclamation. Whenever the portant point here is one that is commonly misunder- President finds that a particular foreign na- stood today: copyright in a ‘‘new version’’ covers only tion extends, to works by authors who are na- the material added by the later author, and has no ef- tionals or domiciliaries of the United States fect one way or the other on the copyright or public do- or to works that are first published in the main status of the preexisting material. United States, copyright protection on sub- Between them the terms ‘‘compilations’’ and ‘‘deriva- stantially the same basis as that on which the tive works’’ which are defined in section 101 com- foreign nation extends protection to works of prehend every copyrightable work that employs pre- existing material or data of any kind. There is nec- its own nationals and domiciliaries and works essarily some overlapping between the two, but they first published in that nation, the President basically represent different concepts. A ‘‘compilation’’ may by proclamation extend protection under results from a process of selecting, bringing together, this title to works of which one or more of the organizing, and arranging previously existing material authors is, on the date of first publication, a of all kinds, regardless of whether the individual items national, domiciliary, or sovereign authority in the material have been or ever could have been sub- of that nation, or which was first published in ject to copyright. A ‘‘derivative work,’’ on the other that nation. The President may revise, sus- hand, requires a process of recasting, transforming, or adapting ‘‘one or more preexisting works’’; the ‘‘pre- pend, or revoke any such proclamation or im- existing work’’ must come within the general subject pose any conditions or limitations on protec- matter of copyright set forth in section 102, regardless tion under a proclamation. of whether it is or was ever copyrighted. For purposes of paragraph (2), a work that is The second part of the sentence that makes up sec- published in the United States or a treaty party tion 103(a) deals with the status of a compilation or de- rivative work unlawfully employing preexisting copy- within 30 days after publication in a foreign na- righted material. In providing that protection does not tion that is not a treaty party shall be consid- extend to ‘‘any part of the work in which such material ered to be first published in the United States or has been used unlawfully,’’ the bill prevents an in- such treaty party, as the case may be.