various and changing conditions." Thus, after listing 9 items of information which should be included in the applications for copyright registration covering all categories of works, the section adds, as a 10th item:

(10) Any other information regarded by the Register of Copyrights as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright.

Of the nine specific items, several include information not now requested in our application forms that would be relevant under the bill: the death dates of authors; a statement, where appropriate, that the work was made for hire; "any previous or alternative titles under which the work can be identified"; and "the year in which creation of the work was completed." Perhaps most noteworthy is clause (5), which would require, "if the copyright claimant is not the author, a brief statement of how the claimant obtained ownership of the copyright."

A proposal to add an item requiring identification of any "work of the United States Government" in the application was not adopted ; in relation to the large volume of applications filed this information would be relevant so infrequently that it would be a burden on the application form. However, the authority of the Register under clause (10) to elicit information "bearing upon the preparation * * * of the work or the existence *** of the copyright" would be broad enough to allow him to seek this information whenever he feels it appropriate.

Suggestions have been made for omitting the enumeration of specific items to be included in an application and for simply giving the Register of Copyrights broad authority, such as that provided in clause (10), to request any information he regards as pertinent. Although this proposal would certainly simplify the provision, our experience under the present law indicates that there are positive benefits in having the statute set forth items of information to be included in the application. As long as the listing is not necessarily exhaustive, it offers advantages of clarity and certainty, and would provide needed administrative guidance.

b. Registration of Claim and Issuance of Certificate

Subsections (a) and (b) of section 409 carry out the recommendations of the Report that the statute specify not only the Register's duty to register copyright claims that appear to him to be valid, but also his authority to refuse to register claims that he determines to be invalid. With respect to the probative effect of registration the Report pointed out that, while the facts given in a certificate are gener

ally trustworthy, their reliability becomes "less certain when registration is made long after the copyright claim originated * * * particularly when registration is made on the eve of an infringement suit, or is made by a claimant who is not the original owner." It therefore recommended that "the certificate should continue to be admitted in any court as prima facie evidence of the facts stated, if registration is made within one year" after first public dissemination, and that, where registration is made later, "the probative weight to be given to the certificate should be left to the discretion of the court."

Section 409 (c) adopts these recommendations, but with two differences in details. As pointed out by a number of commentators, the 1-year period proposed by the Report seems unnecessarily short for purposes of judging the evidentiary value of a certificate. The bill has expanded this period to 5 years:

In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence * * *. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court. It is intended that not only any original registration under section 407(a) but also any supplementary registration under section 407 (d) would have to be made within the 5-year period in order to be accorded automatic prima facie weight.

Subsection (c) also states that the certificate constitutes prima facie evidence not only of "the facts stated in the certificate" but also of "the validity of the copyright." This principle, although not expressed directly, has been held consistently in a long line of cases to be implicit under the present statute, and the desirability of making the point clear in the bill seems obvious.

Under existing law the date when a copyright registration becomes effective is not specified, although the language of section 409(d) of the bill is in line with the Copyright Office's present practice:

The effective date of a copyright registration is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office.

This language recognizes the inevitable time lag between the filing of an application, deposit, and fee for registration, and the actual entry of the registration in the records of the Copyright Office. It also takes account of the possibility that the Register of Copyrights might be wrong in refusing to make a registration; if a court later determines that the application, deposit, and fee were acceptable, the registration is effective as of the date on which they (or the last of them) were received in the Copyright Office.

3. EFFECTS OF FAILURE TO REGISTER

a. Registration as Prerequisite to Infringement Suit

As did the 1961 Report, section 410 of the bill proposes to retain the requirement of the present law that copyright registration must be made before a suit for infringement of the copyright can be brought. This does not mean, of course, that the owner of an unregistered copyright cannot have a valid cause of action for infringements committed before registration, but it does mean that he must register his claim before he can enforce his rights in the courts.

The bill also follows the Report's recommendation that the law as interpreted in Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus Watch Co., 260 F. 2d 637 (2d Cir. 1958), be changed to permit a claimant whose application has been refused to maintain a suit against an infringer "if the Register is notified and permitted to become a party to the suit." Section 410 provides that, "where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights." The last sentence of the section gives the Register the option, though not the duty, of entering the suit within 60 days, but makes clear that he may join the action only "with respect to the issue of registrability of the copyright claim” and that “his failure to do so shall not deprive the court of jurisdiction to determine that issue."

b. Registration as Prerequisite to Certain Remedies

Of the five sections on registration, the one that has attracted the most attention is section 411, which provides:

In any action under this title, no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for:

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after its first publication. This important provision, which perhaps does not yield its meaning at first glance, deserves careful analysis.

Although it differs substantially in its detailed provisions, section 411 adopts the general principle recommended in the 1961 Report that registration be induced by withholding certain special or “extraordinary" remedies in cases where infringement began before registration. As it has emerged from the drafting process, section 411

is now a cornerstone of both the registration sections that precede it and of the provisions on infringement and remedies that follow it. The Report (which was based on the premise that statutory copyright would start when the work was first "publicly disseminated") proposed generally that, if registration were made within 3 months after first "public dissemination," or at any time before the infringement commenced, all of the statutory remedies would be available. Otherwise, the copyright proprietor would be entitled only to actual damages and an injunction against future infringements; he would not be entitled to recover profits or statutory damages, and he could enjoin the infringer from completing his infringing undertaking only by reimbursing him for his outlay. The Report also recommended that these limitations on remedies not be applicable to foreign works entitled to protection under the Universal Copyright Convention.

The comments on these proposals stressed that the suggested limitations on remedies, especially those denying recovery of profits and requiring reimbursement as a condition of enjoining continuing infringements, were far more severe and drastic than necessary to induce registration, and that it would be fundamentally unfair to allow a willful infringer to retain his profits in any case.

The preliminary draft of 1963 omitted the recommended grace period for registration and the exemption for U.C.C. works, but also dropped any limitations with respect to the granting of injunctions. It would have denied statutory damages and attorney's fees for "any infringement commenced before registration," and provided that “no award of profits*** shall be made for any such infringement unless it is shown to have been willful." This requirement for proof of willfulness as a condition for recovering profits where infringement. preceded registration, and an equivalent provision in the remedies section, drew some of the sharpest criticism directed at the preliminary draft. The points most stressed were the practical problems of proving willfulness and the importance in many cases of allowing recovery of profits in order to make the copyright owner whole. Some sentiment was expressed for omitting altogether any limitations on remedies for infringement of unregistered works.

After carefully considering these and the other comments on the provisions concerning registration, innocent infringement, and remedies, we concluded that in general it would be enough to induce registration if the statute made it a condition to the recovery of statutory damages and attorney's fees. These are the extraordinary remedies under the statute that are not usually available for injury to property. Since registration is not to be a condition of copyright protection, we believe that, even where infringement is begun before registration, the copyright owner should be entitled to the usual

remedies. He should be able to obtain an injunction on any terms the court considers fair, and "to recover the actual damages suffered by him as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages," as provided in section 504(b); but the special remedies of statutory damages under section 504 (c) and attorney's fees under section 505 should be dependent on registration.

In the discussions of the 1964 bill, which embodied these principles, an argument was made in favor of restoring the grace period for registration after publication. It was pointed out that there are cases (newsworthy photographs or articles, for example) where "instant infringement” takes place immediately after publication and before the copyright owner has had time to register his claim. This proposal struck us as valid, and has been incorporated in the 1965 bill.

Under clause (1) of section 411 statutory damages and attorney's fees would be denied where the work infringed is unpublished and the infringement took place before registration. It should be emphasized that this section in no way narrows the remedies available under the present law, since common law copyright protection for unpublished, unregistered works does not entitle the owner to statutory damages or attorney's fees in any event. The bill may actually afford broader protection than that now available to unpublished works under the common law, since there is doubt as to whether profits can ordinarily be recovered in common law actions except as a measure of damages, and since there are often major procedural advantages in Federal jurisdiction and in the enforceability of Federal injunctions and judgments. Moreover, although the present law permits registration for only certain types of unpublished works, under the bill any kind of unpublished work could be registered and thereby acquire the right to recover full statutory remedies against an infringer.

With respect to published works, clause (2) of section 411 would deny statutory damages and attorney's fees for "any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after its first publication." In other words, those two special remedies would not generally be awarded where infringement of a published work takes place before its registration. However, as an exception, the bill provides a grace period of 3 months after first publication in which to make registration; full remedies could be recovered for any infringement begun during that period, as long as registration is made before the end of the period.