length of the renewal term from 28 to 47 years (making a total term of 75 years from publication or registration). For copyrights in their renewal term the total term would also be extended to 75 years. In both cases the bill contains provisions, closely similar to those with respect to the right to terminate assignments and licenses, which would entitle the author or certain of his beneficiaries to reclaim rights in the extended term of copyright. NOTICE OF COPYRIGHT Notice requirements in general. The statute now requires, as a condition of copyright protection, that the published copies of a work bear a copyright notice in a definite form and position. 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. Form and position of notice. Under section 401, all publicly distributed copies of a work are to bear a copyright notice, "affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright." In form the notice is to consist of three elements: (1) the symbol "," the word "Copyright," or the abbreviation "Copr."; (2) the year of first publication of the work; and (3) the name of the copyright owner. Section 402 contains parallel provisions for the notice applicable to sound recordings, the main difference being that the symbol "P" is to be used as the first of the three elements in the notice. Contributions to collective works. Section 403 is intended to clarify the present confused situation with respect to contributions published without a copyright notice in collective works that bear a general notice of their own. The bill would permit the contribution to bear its own notice, but provides generally that, except for independent advertisements, "a single notice applicable to the collective work as a whole is sufficient to satisfy the requirements *** with respect to the separate contributions it contains." Effect of omission of notice. Under section 404, the omission of notice would not invalidate the copyright if: (1) the omission was from a "relatively small number" of publicly distributed copies or phonorecords, or (2) copyright registration for the work is made before or within five years after the omission, and a reasonable effort is made to add the notice after its omission is discovered. In either case an innocent infringer who was misled by the omission would be shielded from monetary liability under certain circumstances. Error with respect to name or date. Section 405 (a) makes clear that the use of the wrong name in the copyright notice will not affect the validity or ownership of the copyright. However, unless the error had been corrected in the Copyright Office records, an innocent infringer who was misled by the notice would have a complete defense if he infringed under the purported authority of the person named in the notice. An antedated notice might shorten the term of copyright, but would not affect the scope of protection under the bill. However, if the notice is postdated by more than one year, or if the name or date has been omitted, the case would be treated as if the notice had been omitted completely. DEPOSIT AND REGISTRATION Deposit for the Library of Congress. The bill treats the deposit of copies or phonorecords for the Library of Congress and for the registration of claims to copyright as two closely related but different things. It would establish a mandatory deposit system under which the right of the Library of Congress to obtain copies and phonorecords for its collections would be preserved. However, section 406 makes clear that "[t]his deposit is not a condition of copyright protection," and need not be coupled with registration unless the applicant wishes. The deposit requirements would be enforced by the imposition of a specified fine, and certain categories of material could be exempted by the Register of Copyrights from the deposit requirements altogether. Copyright registration in general. As under the present law, registration would generally not be a condition of copyright protection. A single deposit could be made to serve both as the deposit for the Library under section 406 and as the deposit required for registration under section 407. The Register of Copyrights would be authorized to establish optional deposit requirements for certain classes of material. Section 409 provides that the certificate of registration would be "prima facie evidence of the validity of the copyright and of the facts stated in the certificate" if registration is made before or within five years after first publication; if not, the court could give it any evidentiary weight it saw fit. Effects of failure to register. Section 410 retains the requirement of the present law that copyright registration must be made before a suit for copyright infringement can be brought. It also provides, however, that if a claimant has properly applied for registration and been refused, he may maintain an infringement suit if the Register of Copyrights is notified and permitted to become a party. Except for a grace period of three months after publication, section 411 would deny the extraordinary remedies of statutory damages and attorney's fees for infringements occurring before registration. COPYRIGHT INFRINGEMENT AND REMEDIES Parties to infringement suits. Under section 501 (b), the “legal or beneficial owner of an exclusive right under a copyright" would be entitled "to institute an action for any infringement of that particular right committed while he is the owner of it." However, in order to protect the interests of other owners of exclusive rights and to avoid a multiplicity of suits, the subsection also contains provisions governing notice, joinder, or intervention with respect to other persons who may have an interest in the copyright. Remedies for infringement. Except for the provisions on damages and profits, the bill would make few changes in the remedies for copyright infringement available under the present law. With respect to damages and profits, however, section 504 not only attempts to settle a number of disputed questions but also makes some substantive changes. The copyright owner would be given the right to elect to recover either his "actual damages and any additional profits of the infringer" or statutory damages. Recovery of profits in addition to actual damages would be permitted where they "are attributable to the infringement and are not taken into account in computing the actual damages." As an alternative, statutory damages of not less than $250 or more than $10,000 could be recovered for all of the "infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally." The $10,000 maximum could be increased to $20,000 in certain cases of willful infringement, and the $250 minimum could be reduced to $100 where "the infringer sustains the burden of proving that he was not aware and had no reason to believe that his acts constituted an infringement.” MANUFACTURING REQUIREMENT AND IMPORTATION Manufacture of certain copies in the United States. The present law requires, with a number of exceptions and qualifications, that English-language books and periodicals must be manufactured in the United States in order to be entitled to full-term copyright protection. The main impact of this requirement today falls on works by American authors, which in some cases are thrown into the public domain as a result of the failure to comply with the law's strict requirements. Section 601 would retain a manufacturing requirement, but with substantial changes that would make its results less drastic. In particular, the scope of the works covered by the requirement would be narrowed, violation would result in the possible loss of certain rights against infringers rather than the complete loss of protection, the special affidavit and "ad interim" requirements would be abolished, and the ceiling on importation of a foreign edition would be raised from 1,500 to 3,500 copies. A dispute has existed under the present law as to whether the printing of copies in the United States from imported "reproduction proofs" constitutes a violation of the manufacturing clause; section 601 (c) is intended to preserve the present law as to what constitutes "manufacture in the United States," leaving this question for determination by the courts. Infringing importation. Section 602 provides that, except in the case of certain libraries, the unauthorized importation of copies or phonorecords for the purpose of public distribution constitutes an infringement. An unauthorized importer could be enjoined and sued for damages both where the copies or phonorecords he was importing were "piratical" (that is, where their making would have constituted an infringement if the U.S. copyright law could have been applied), and where their making was "lawful." However, the Bureau of Customs would have power to exclude only "piratical" copies. ADMINISTRATIVE PROVISIONS In general. The administrative provisions in Chapter 7 of the bill are, for the most part, restatements of provisions in the present statute. Retention and disposition of deposited articles. Section 704 expresses the policy that deposited items are to be retained for as long as possible, but preserves the discretion of the Register of Copyrights and the Librarian of Congress to dispose of them ultimately under proper safeguards. It also provides for the setting up of a new procedure, involving the payment of additional fees, under which the retention of a particular deposit for the full term of copyright could be requested. Catalog of copyright entries. Section 707 (a) provides for the continued publication of catalogs of copyright registrations, but would give the Register of Copyrights a more flexible authorization to determine the form and frequency of publication of each part of the catalog. Copyright Office fees. The fee schedule in section 708 is in line with the fees provided in a separate bill now pending in Congress (H.R. 2853), which would raise the present fees. It sets the basic registration fee at $6 and the fee for renewal of subsisting copyrights at $4. |