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law.

Formalities have played an important role in United States copyright Although formalities have been liberalized or reduced in the present law, the provisions concerning copyright notice, registration of claims to copyright (including renewals), recordation of copyright transfers, and mandatory deposit of published copies and phonorecords for the Library of Congress must be examined to determine whether or not they constitute a prohibited formality under the Berne Convention.16/

1. Notice. Notice has been a requirement of United States copyright law since 1790, and the requirement that such notice be placed on published copies has been in the law since 1802.17/ These notice requirements were conditions of copyright protection. Under the previous copyright law, the Act of 1909, with the exception of certain unpublished works, copyright protection was secured by publication with a copyright notice on all copies; this notice had to be in a specified form and position. A frequently cited criticism of that law was the rigidity and unfairness of the notice provisions. Between 1924 and 1941, in an attempt to permit the United States to become a member of the Berne Convention, a number of bills were introduced in Congress to eliminate the notice of copyright as a condition of copyright protection; these bills, however, included substantial inducements which encouraged the use of the notice. 18/ Over the years certain author and

16. The Copyright Office generally favored the elimination of another formality--the manufacturing clause--from the copyright laws. The "clause" expired on July 1, 1986. Its elimination removes one of the generally perceived barriers to United States adherence to Berne.

17. See generally Doyle, Cary, McCannon & Ringer, Notice of Copyright, Copyright Law Revision Study No. 7, Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the Judiciary, 86th Cong., 2d Sess. (Comm. Print 1960).

18. Id. at 37-45.

publisher groups argued for complete elimination of the notice requirement. Others supported its retention. The arguments against a mandatory copyright notice have included:

the fruits of his labor; the notice requirement, which
forces an author to make an affirmative claim or
forfeit copyright protection, is in basic conflict
with this principle.

2. Notice is anachronistic.

Most of the other

countries of the world require no general notice

formalities, and in clinging to the requirement the
United States is hopelessly behind the times.

3. Notice is useless.

-

Since anyone wishing to

determine the ownership or expiration date of a

copyright must necessarily go beyond the notice, it is

in reality a meaningless technicality.

-

Many

4. Notice is unjust and oppressive.
copyrights are lost because of technical defects in
the notice over which the author had no control; an
author is not a executive and is not equipped to deal
with complex formalities.

Arguments in support of a notice requirement have included:

No one is

1. Notice is socially desirable.
interested in copyrighting the large majority of

published works but, without formalities, they would

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be pointlessly kept in the private domain for many

years; this would inevitably hamper scholarship and
free cultural interchange.

Far from

2. Notice fits the U.S. situation.
being an outmoded concept, notice is increasingly
needed to meet the demands for copyright information
created by technological developments and the growing
number of "secondary users."

3. Notice accords with the U.S. theory of copyright. Copyright in the United States is a limited grant of an exclusive right to provide an incentive to creation, rather than a natural right of the author. It is thus appropriate to require the author to fulfill certain conditions that are of benefit to the public.

Notice

4. Notice is effective in practice.
fulfills a vital function in informing the public that
a claim exists, and in providing users with at least a
starting point for determining ownership and duration.
The burden of affixing a notice is generally very
slight.19/

19. Id. at 46, 47. See also Blaisdell, Commercial Use of the Copyright Notice, Copyright Law Revision Study No. 8, Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the Judiciary, 86th Cong., 2d Sess. (Comm. Print 1960) and Rogers, Use of the Copyright Notice By Libraries, Copyright Law Revision Study No. 9, Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the Judiciary, 86th Cong., 2d Sess. (Comm. Print 1960).

In 1961 the Register of Copyrights stated that he believed that the public interest was served by "keeping free of copyright restrictions the great bulk of published material in which the authors do not wish to secure copyright. "20/ The Register noted that "[t]he copyright notice is a simple and highly useful device to accomplish that purpose and also give the public information as to the copyright status and ownership of any work."21/ The Office therefore urged continuation of a notice requirement on published copies but recommended certain changes to avoid the forfeiture of copyright through omission of errors in the notice. The notice requirements were substantially liberalized in the present copyright law. (See 17 U.S.C. $$401-406.)

...

The basic notice provisions of the 1976 Copyright Act are set forth in sections 401 and 402. Section 401 covers the notice on published, visually perceptible copies; section 402 covers the notice on phonorecords of sound recordings. Omission of the notice does not invalidate the copyright if the omission is "from no more than a relatively small number of copies distributed to the public "22/ or if the work has been registered in the United States Copyright Office within five years after publication without notice, and if a "reasonable effort is made to add notice to all copies... that are distributed to the public after the omission has been discovered. "23/ There are special safeguards for innocent infringers who rely on the absence of notice in a good faith undertaking.

...

20. Report of the Register of Copyrights on the General Revision of the United States Copyright Law, House Comm. on the Judiciary, 87th Cong., 1st Sess. 63 (Comm. Print 1961).

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Under the present law, omission or mistakes amounting to an omission of the notice can result in the work being placed in the public domain in this country if prescribed corrective measures are not taken within the statutorily specified time frame. This constitutes a prohibited formality under Berne, at least as applied to works whose country of origin is another Berne state.24/ The present notice provisions thus conflict with the Berne Article 5(2) prohibition on formalities and, should the United States adhere to the Berne Convention, changes in the notice provisions of the United States law would be required.

There are at least three possible approaches to resolve the conflict between the United States law and the Berne Convention. First, a notice of copyright could be required as a condition of copyright for works of United States nationals which are first published here. Second, a voluntary notice system with significant incentives to encourage use could be enacted. Finally, the notice requirements could be eliminated entirely. In 1980 the American Bar Association's Patent, Trademark and Copyright Law Section adopted a resolution approving in principle "legislation providing for the elimination of all copyright notice requirements under the Copyright Law of the United States. "25/ It is unclear to the Copyright Office how the interested parties, including noncommercial users in particular, now feel about retention of a

24.

25.

The Ad Hoc Working Group concluded that with respect to works of foreign origin, the provisions of section 401 are incompatible with the provisions of Article 5(2) of the Berne Convention, and that, with respect to works of U.S. origin, the Convention provides that protection in the country of origin is governed by domestic law, so that the question of compatibility does not arise. Ad Hoc Working Group Report at 559.

American Bar Association, Section of Patent, Trademark and Copyright Law, 1980 Summary of Proceedings 123 (1980).