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upon the existence of "an instrument of conveyance" or, alternatively, of "a note or memorandum of the transfer."
This section of the bill attracted little attention in the course of our discussions, but its practical consequences may be substantial. With the bringing under the statute of all unpublished works now protected by the common law, the requirement that all transfers of copyright be in writing will have a much broader application.
E. RECORDATION OF TRANSFERS
In accordance with the recommendations of the Report, section 205 (a) of the bill provides for the recordation in the Copyright Office of "[a]ny transfer of copyright ownership or other document pertaining to a copyright," and requires that the document filed for recordation bear the "actual signature of the person who executed it” or that it be "accompanied by a sworn or official certification that it is a true copy Subsection (c) of section 205 implements another recommendation of the Report by providing that recordation of a document constitutes constructive notice of the facts it states only if "the document, or material attached to it, specifically identifies the work to which it pertains so that, after the document is indexed by the Register of Copyrights, it would be revealed by a reasonable search under the title or registration number of the work; ***"
The bill adds, as another condition for according a recorded document the effect of constructive notice, that registration for the work has been made. This would establish the basis of the copyright covered by the document, and would enable persons searching the records to trace title to the copyright from the original owner.
Section 205 (d) would require a transferee to record his instrument of transfer as a condition to bringing an infringement suit, and thereby to place on public record the basis on which he claims ownership. The subsection also makes clear that a delay in making recordation until after an infringement has occurred will not affect the transferee's rights or remedies against the infringer.
The 1961 Report recommended that:
The statute should provide that if an assignment is not recorded within 1 month after its execution in the United States, or within 3 months after its execution abroad, or before the recordation of a subsequent assignment, then the subsequent assignment will prevail when it is taken for a valuable consideration without notice and recorded first.
This recommendation, which modifies the present law in some respects, has been adopted in section 205 (e) with two relatively minor changes:
(a) The 1- and 3-month grace periods were criticized as too short to be practical and have been increased to 2 and 4 months; and
(b) Since the courts have held that "valuable consideration" in this context does not include an agreement to pay royalties, the concept has been enlarged to include a transfer taken for "valuable consideration or on the basis of a binding promise to pay royalties."
Finally, despite some arguments to the contrary, section 205(f) carries out the Report's proposal with respect to the priority to be given non-exclusive licenses. Whether recorded or not, a non-exclusive license taken without notice of a prior unrecorded transfer would be valid as against the transferee, and an unrecorded non-exclusive license would be valid as against a subsequent transfer.
FEDERAL PRE-EMPTION AND DURATION OF
A. Federal pre-emption of rights equivalent to copyright_ 1. Single Federal system___
2. Works created after new law's effective date__.
b. Joint works__
c. Anonymous works, pseudonymous works,
FEDERAL PRE-EMPTION AND DURATION OF
A. FEDERAL PRE-EMPTION OF RIGHTS EQUIVALENT TO COPYRIGHT
1. SINGLE FEDERAL SYSTEM
Perhaps the most fundamental issue underlying the entire revision program is whether it should retain the present dual system of "common law copyright" for unpublished works and statutory copyright for published works, or whether it should adopt a single system of Federal statutory copyright from creation. The present law, like every previous U.S. copyright law, makes "publication" the dividing line between common law protection under State law and statutory protection under the Federal copyright law. In general a work has been published if "copies" have been made unconditionally available to the public at large, and in this country a "published" work must either be protected by Federal statutory copyright or else it is in the public domain.
At one time "publication" furnished a practical boundary line between common law and statutory protection, but during the past half century is has become less and less satisfactory for this purpose. Today, to take only one example, a work could be thrown into the public domain or subjected to the limitations of the Federal copyright statute if one copy of it is sold, whereas it could continue to be protected under common law copyright, perpetually and without limitations, if it is performed before 50 million people on television. The concept of "publication" has not only been outstripped by the revolution in communications during the past 50 years, but its meaning has also become increasingly obscure. The word is used in several different senses in the present statute, but is left undefined. The courts have evolved different concepts of "limited" and "general" publication and of "investitive" and "divestitive" publication, all with different consequences. Whether "publication" results from the sale of phonograph records, the exhibition of art works, or the deposit of copies in a public office, is unclear. The present situation is chaotic, and it is becoming worse all the time.
The 1961 Report, while recognizing how unsatisfactory the present concept of "publication" is, recommended broadening and clari