Chapter 5 NOTICE OF COPYRIGHT A. THE NOTICE REQUIREMENTS IN GENERAL One of the principal criticisms of the present copyright statute has been directed at the rigidity and unfairness of the provisions requiring a notice of copyright as a condition of protection. Unintentional omission of the notice and comparatively trivial errors in its form and position have caused complete forfeiture in a number of cases, and it has been argued that, because of this injustice, the notice requirements should be eliminated entirely. It has also been urged that, as a matter of principle, an author should be entitled to protection without the need of giving public notice of his claim. The 1961 Report weighed these objections against the four principal values of a copyright notice: (1) placing published material which no one is interested in protecting in the public domain; (2) showing whether a work is under copyright; (3) identifying the copyright owner; and (4) showing the year of publication. It concluded that these are real and important purposes which should be preserved, and it proposed to "continue to require a copyright notice in published copies, but with certain changes in the present law to avoid the forfeiture of copyright through inadvertent omission of or errors in the notice." The broad outlines of the Report's recommendations for carrying out this proposal have been retained in the 1965 bill, but with some additional changes aimed at making the notice simpler and minimizing still further the effect of omissions and errors. In general, sections 401 through 405 of the bill represent an effort to preserve the values of the copyright notice by inducing its use, while substantially ameliorating the effects of accidental or even deliberate errors or omissions. Subject to certain safeguards for innocent infringers, protection would not be lost by the complete omission of notice from large numbers of copies or from a whole edition, if registration for the work is made before or within 5 years after publication. Errors in the name or date in the notice would not be fatal and could be corrected under the bill. Section 401(a) sets forth the basic notice requirement: that, whenever a protected work "is published in the United States or elsewhere by authority of the copyright owner, a notice * ** shall be placed on all publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.” In general this restates the scope of the present notice requirements, which apply only to authorized "copies" of published works from which the work can be perceived by the eye. Section 402 (a) establishes a new notice requirement which, paralleling section 401(a), covers the new subject matter of sound recordings: Whenever a sound recording protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section shall be placed on all publicly distributed phonorecords of the sound recording. For the reasons already outlined in chapters 1 and 2, the bill would extend copyright protection to sound recordings as works in themselves, separate and distinct from the literary or musical works they embody. Because of this distinction and the obvious danger of confusion if the notice were the same for both, the notice to appear on the "phonorecords" of "sound recordings" would differ from that to appear on the "copies" of other works under section 401. Since "phonorecords" are not "copies," there would be no need to place a section 401 notice on "phonorecords" to cover the literary or musical work embodied in the record. Three general points should be emphasized with respect to both sections 401 (a) and 402 (a): (1) The bill requires a notice only on copies or phonorecords that have been "publicly distributed." Thus, for example, the mere public exhibition of a visually perceptible copy, whether directly or by means of projectors, television, or other devices, would not require a notice. This would resolve an unsettled question under the present law, which seems to point in the direction of requiring a notice whenever a copy is exhibited to the public without restrictions as to copying. (2) The intention behind the language of both subsections is that, where the copyright owner has authorized publication of a work, the public distribution of copies or phonorecords without a notice will not meet the requirements of sections 401(a) and 402 (a). As under the present law, this would be true even if the author expected a notice to be used, as long as the use of the notice was not an actual condition of his authorization. On the other hand, where the owner authorized publication only on the express condition that the publicly distributed copies or phonorecords bear a prescribed notice, publication without that notice would not be authorized and would have no effect upon his rights. (3) Both subsections require use of a notice whenever the work "is published in the United States or elsewhere * Under section 10 of the present statute, as interpreted by the Copyright Office Regulations, a work first published abroad must generally bear a notice at the time of its first publication in order to secure copyright protection in the United States; however, there have been court decisions indicating that, once copyright has been secured, any copies later distributed outside the United States need not bear a notice. Thus, in this one respect, the proposed requirement may be tighter than under the present law; it has been argued very strenuously that, since foreign publishers sometimes ignore the need to use a notice, the requirement could work a hardship on American authors and publishers. While this argument has validity, there are several factors to consider: (a) In view of the valuable purposes served by the notice, it would be unwise to eliminate it for the vast body of works published abroad unless there were overwhelming reasons for doing so. (b) Many copies of works published abroad find their way into the United States where, if they bore no notice, they might induce innocent infringements. (c) The consequences of failure to use a notice would be much less drastic under the bill than they are now: for the most part they pertain to limitations on remedies against innocent infringers rather than a forfeiture of rights. (d) Under section 9(c) of the present law a notice must appear on all copies of a work distributed anywhere in the world in order to be entitled to the special benefits of the Universal Copyright Convention. As a result, a great many foreign publishers have become accustomed to the use of the notice, and their numbers are increasing. With the breaking down of national barriers with respect to intellectual materials, and the free flow of copies and phonorecords across boundaries, the need for a notice on foreign works becomes more urgent than ever before. To throw away the gains that have been made in the use of the notice under the Universal Copyright Convention would seem unwise and shortsighted. (e) An American author or publisher can guard himself against a foreign grantee of publishing rights who carelessly omits the notice, by making the use of notice a condition of the grant. Aside from the requirement for registration before or within 5 years. of publication, the principal consequence of omission of notice is the loss of some remedies against innocent infringers provided in section 404. That section, which is discussed below, is intended to preserve the copyright when notice has been omitted, and to allow remedial action against infringers except for infringements committed innocently by a person who was misled by the absence of notice. It is true that, where the notice is left off of foreign copies, the copyright owner might occasionally suffer a loss under section 404 if one of those copies comes into the hands of someone who is misled by the omission and infringes innocently in the United States. Whatever the solution under section 404, however, we do not believe the risk of loss is so great as to justify abandoning the general requirement that copies published abroad bear the notice. B. FORM AND POSITION OF NOTICE 1. VISUALLY PERCEPTIBLE COPIES The form of notice prescribed by section 401 (b) is generally in accord with the recommendations of the 1961 Report, but with some |