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publication. The procedure for securing copyright in a published work is apparently simple, requiring only the imprinting of a copyright notice on each copy. Washingtonian Company v. Pearson (306 U.S. 30). Registration of the copyright and deposit of the work is optional except as a procedural prerequisite to an action for infringement or in response to a specific demand by the Register of Copyrights.
In actual practice, however, the problem is not so simple. Except in the most conventional cases, no one is quite certain of the adequacy of the notice to comply with the statute. National Comics Publications V. Fawcett Publications (191 F. 2d 594), illustrates the type of jigsaw puzzle with which the courts are presented, not to determine ownership or originality of the work, or the question of its infringement, but to decide whether there has been compliance with the formalities required by the statute. Heim v. Universal Pictures (154 F. 2d 480), is another instance of the uncertainty which exists in the interpretation of the notice provisions. No one can say with assurance whether first publication abroad without a copyright notice dedicates the work to the public in the United States. Excessive caution because of these and other uncertainties concerning the adequacy of copyright notices, has led to practices such as imprinting long lists of copyright notices in compilations, and in some cases, to the imprinting of notices in footnotes where references are made to copyrighted works or where short quotations are used. The failure to imprint a proper copyright notice, or to imprint it in the proper place, will result in the destruction of copyright in a work. Accordingly, it is almost impossible to prognosticate which deviations from the rigid requirements will be overlooked and those which will be fatal.
Moreover, despite the importance of publication in copyright law as the line of demarcation between the application of common law and statutory rights, there is no precise and inclusive definition of that term. Although the Copyright Act is primarily concerned with “published" works, and section 2 reserves the right of an author or proprietor of an “unpublished work” to prevent reproduction at common law or in equity, the act itself provides no definition by which the difference between these two categories of works may be judged.
The generally accepted view is that a work is published only when reproduced in copies which are offered for sale, sold, or distributed to the public. This view of publication is consistent not only with the weight of authority but with the statute itself.
For the most part, this concept has been adopted by the courts. It is well established that a public performance of a play or a inusical composition does not constitute publication of the work. (Ferris v. Frohman, 223 U.S. 424 : McCarthy & Fischer v. White, 259 Fed. 364; Palmer v. DeWitt, 47 N.Y. 532; Thompkins v. Halleck. 133 Mass. 32.) A limited or restricted distribution of copies does not constitute publication so as to terminate common law rights. (See White v. Kimmell, 94 F. Supp. 502.)
Nevertheless, we find doubts created from time to time concerning the concept of publication. A court has held (Shapiro, Bernstein & Co. v. Miracle Records, 91 F. Supp. 473) that the issuance of a phonograph record (which under White Smith Music Publishing Co. v. Apollo Publishing Co., 209 U.S. 1, is not considered a copy of a work) constitutes a “publication.” It has been stated that “a general publication consists in such disclosure, communication, circulation, exhibition, or distribution of the subject of copyright tendered or given to one or more general members of the public as implies an abandonment of copyright or its dedication to the public" (Werckmeister v. American Lithograph Co., 134 Fed. 321, 326, quoted in White v. Kimmell, supra).
Another radical change which takes place when a work ceases to be protected at common law and comes within the statute, consists of the reduction of the term of protection. Instead of the perpetual copyright afforded by the common law, the statute cuts down the terms to 28 years from the date of publication, after which an additional term of 28 years may be secured. The aggregate term is therefore limited to 50 years. The renewal term, i.e., the second period of 28 years, is considered to be a new grant available only to the limited category of persons specified in section 24 of the act, and it must be applied for within the 28th year of the original term. Unless the application is made strictly in conformity with the statutory provisions, the renewal does not become effective.
This division of copyright term into two portions and the statutory limitations on the right to apply for and to own the copyright for the second period has proven to be most unsatisfactory. It has been the source of extensive litigation and even at this late date, a number of questions remain unresolved. One of the virtues of the proposed revision lies in the change which will be effected in this phase of the law.
Still another aspect of the inadequacy of our present copyright system lies in its failure to make proper provision for statutory protection of many categories of unpublished works. Many works publicly communicated and widely disseminated as well as those produced in limited numbers of copies are escluded from our statutory system because they have not been "published" in the technical sense of that term.
While unpublished works such as lectures, sermons, dramatic and musical compositions, photographs and works of art and motion pictures may be registered for statutory copyright, this same privilege is not accorded to such works as books, scientific articles, poetry, and other works not intended for "oral" delivery. The statutory privilege of registering a work in its unpublished state does not even apply to songs, lectures, or sermons which have been recorded on tapes or disks because these recordings are not in "visual” form. As a result, numerous categories of works which should be entitled to statutory copyright presently cannot enjoy that protection.
Because of the limitations of the present statute the copyright system has been able to function only because of the safeguards, however uncertain, which are provided by common law copyright.
In the light of modern technology and present-day means of communication, the distinction between published and unpublished works has become artificial and obsolete. It is a virtue of the proposed revision that this outmoded distinction will disappear and statutory protection would be available to and will include all copyrightable works.
PART IV. A SINGLE UNIFORM SYSTEM OF COPYRIGHT AND THE TERM OF COPYRIGHT
Perhaps the most important change which would result from the bill is the establishment of a single, uniform system of copyright, governed entirely by Federal statute, and embracing both published and unpublished works.
From the testimony which has been adduced before the Judiciary Committee of the House of Representatives, as well as from the tenor of the discussions at meetings of the Panel of Specialists and of Bar Association Committees, it appears that the proposal to supplant the dual system of copyright with a single Federal statutory system has met with virtually unanimous approval.
There is also a general consensus of opinion that the copyright term should be extended, following our traditional pattern of giving effect to the increasing longevity and life expectancy of our authors and other creators. The bill proposes a basic term of copyright extending throughout the lifetime of the author and a period of 50 years after his death, and this formula has also received general approval.
However, in the course of the hearings inquiry was made concerning an earlier recommendation made by the Register of Copyrights which would have fixed the term at 76 years from the date of “public dissemination" of work. The term of 76 years, it was suggested, would provide approximately the same span as a period of 50 years beyond the death of the author.
The Register's report of July 10, 1961, was considered and discussed at length in the copyright community and the reasons for the change in the copyright term may be summarized as follows:
1. With the adoption of a single system of copyright which would include both unpublished as well as published works, the date of publication could no longer serve as the time of commencement of the copyright term, and the date from which a specified number of years could be computed.
2. The Register's proposal to substitute the concept of "public dissemination" would create more uncertainty and even more confusion than that which exists under the present statute. It would be almost impossible to frame a definition establishing a line of demarcation between those works which had been "publicly disseminated” and those which were “undisseminated." In author who submits a manuscript to a publisher anticipates that editorial and other changes may be required before publication. The dramatist does not wait until his play is completed in final form before presenting it to prospective producers or financial backers. As a general practice, a play goes through a number of revisions during rehearsal and out-of-town tryouts, as well as after
the dress rehearsal. It is common practice for a song to be changed after it had been submitted to a publisher and before it is published or recorded. A lecturer vay vary his paper from time to time before making a definitive version for publication. Many works are presented to publishers and other prospective users ir outline form and approval is awaited before the work is completed. Sometimes works are submitted to individual publishers or producers, or editors, or they may be submitted to a group or committee. Manuscripts are often submitted simultaneously to various publishers, bandleaders, and other users.
These are but a few examples of the variety of factors which would enter into a determination as to whether and when a work was publicly "disseminated.”
Another difficulty with the earlier proposal is the factor that the manuscripts of books, plays, songs, outlines and other works submitted to publishers, motion picture companies, broadcasters and others, but not "publicly disseminated," irould be wholly unprotected if common law rights were abolished. How would these “undisseminated" works be protected in the absense of common law copyriyht? The concept of a line of demarcation, or of the inception of the copy. right term based upon “public dissemination" would defeat the very purpose of establishing a single Federal system of copyright. It would have been a new concept without any prior precedent or experience in the copyright or other field of law.
3. On the other hand, the method of basing the term of copyright upon the life of the author is one which not only prevails in most countries of the world, but is one which has proven over the years to be practical. The adoption of a similar formula will not only bring us in line with these other countries, but will provide various advantages in the area of international copyright dealings.
('nder article IV, section 4 of the Universal Copyright Convention, the foreign copyright term in an American work could be limited in the convention countries, to the period provided by our statute. If an American author died in the 50th year of the copyright term, his rights in a foreign country might terminate in 6 years (the term presently in effect), or in 26 years if the earlier proposal of the Register were to be adopted. This curtailment of the term might take place even though the term of a national of that country were to extend for 50 years beyond his death. The adoption of the term proposed in the present bill, would safeguard American literary property abroad against this discriminatory treatment, because the terms would then be substantially the same as the terms which prevail in most foreign countries where our works are used.
The term proposed in the present bill would also serve to simplify clearances for works used in international communication, particularly in international broadcasting. Works protected for comparable periods would require comparable clearances, and those which fall into the public domain in one country would likewise be in the public domain in others as well. Clearly, the adoption of a term of copyright consistent with that which prevails in other countries would tend to eliminate or minimize the barriers to international communication.
The adoption of the term proposed by the bill would benefit both authors and users of copyrighted material. A fixed term of years commencing with publication or dissemination and continuing for a fixed number of years, yields the result that an author's works fall into the public domain piece by piece from year to year. Copyright in his early works may expire during this lifetime, whereas his later works may remain in copyright for many years after his death.
In each case, it is necessary to determine when a work was published, and if it had been issued in more than one edition, when each edition was published. It is not possible under that formula to publish a complete set of an author's writings until copyright has expired on the last of his works to be published.
Under that system, an author may outlive his copyright, and have his work published by a stranger without his consent. He may lose not only the financial benefits derived from copyright, but may be faced with the publication of an early edition of a scientific or other technical work, which he had revised in later editions as a result of additional research and investigation.
It is generally recognized by those who have had experience in the copyright field that the interests of both creators and the public are best served by the logical formula of a copyright term based upon the author's life. There is rarely a problem, particularly in modern times, of ascertaining the date of an author's death.
A word should be said about the suggestion that the maintenance of a fixed term of years divided into an original term of copyright and a renewal period,
is in the public interest. This suggestion is fallacious. It fails to take into account that many works which secure copyright, have only a temporary purpose and value. They are street directories, commercial catalogs, telephone directories, advertising brochures and other similar material, which constitute the trivia of the copyrightable material. The purpose of these works is served in a short time and their value is dissipated with the lapse of time. An advertising pamphlet prepared to sell a 1937 model of an automobile would hardly be of sufficient value in 1965 to justify the payment of the renewal fee. One might also ask the question whether anybody would be interested in reproducing copies of that ancient pamphlet.
On the other hand, material such as books, musical compositions, poetry, short stories, works of art, and many others continue to have a value because they are read or are enjoyed from generation to generation. The copyright in these works are rarely allowed to lapse, except as a result of ignorance or neglect.
There is moreover no validity to an argument that the public benefits from a short term of copyright. The protection of copyright does not destroy the availability of literary property. On the contrary, the most effective means of making literary property available is to provide an incentive for continued publication and dissemination. The very essence of the copyright system is to encourage authors, publishers, and others to exploit this property by making it profitable for them to do so.
EXCLUSIVE RIGHTS, EXEMPTIONS AND FAIR USE
Among the provisions of the bill which constitute an improvement in our copyright system, are those which clarify the exclusive rights to which a copy. right owner is entitled, and which enumerate the exemptions from, and the limitations upon, those rights.
Sections 106 through 114 list in detail the various rights to which the copyright owner is entitled in various categories of works, and likewise prescribe the areas in which the works may be used freely and for which no infringement can be claimed. The specific exemptions relate to the areas of "face to face" teaching activities, educational broadcasting, religious services, and performances for educational, religious, and charitable purposes.
It should be noted that the specific exemptions provide complete freedom from a claim for infringement if the work is used upon the terms and under the conditions imposed by the statute. But in addition to these specific exemptions, the statute provides in section 107 that: “Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright."
Fair use is a principle which has been developed in copyright jurisprudence over the years, although it has never been affirmatively expressed in our copyright statutes. The rule is designed to permit limited quotation and copying from a copyrighted work for purposes which have neither the intent nor effect of fulfilling the demand for the original work. The doctrine has no rigid boundaries, but takes into account the nature and purpose of the respective works, the quantity and the importance of any portions copied, the relationship of the portions used to the respective works of which they are or become a part and the impact of the unauthorized use of these portions in a rival publication upon the demand for the original copyrighted publication.
This flexible rule predicated upon good faith and commonsense, has been established and developed by judicial decision to provide a balance between the exclusive and absolute rights of a copyright proprietor, and the correlative right of the public to benefit from advances in learning and knowledge. It has been applied in the area of literary criticism, in the context of research, and in relation to the preparation and publication of reference works such as encyclopedias and other texts.
The rule of fair use was summarized concisely in “Drone on Copyright" (pp. 380-387) as follows:
"It is a recognized principle that every author, compiler, or publisher may make certain uses of a copyrighted work, in the preparation of a rival or other publication. The recognition of this doctrine is essential to the growth of knowledge; as it would obviously be a hindrance to learning if every work were a sealed book to all subsequent authors. The law therefore wisely allows a "fair use" to be made of every copyrighted production; and this liberty is consistent with the true purpose of the law to give to the earlier author adequate protection for the results of his labor. But to deterinine the extent of this license, and to draw the line between a fair and an unlawful use is often one of the most difficult problems in the law of copyright. The question must generally be determined by the special facts in each case.”
As Drone indicates, the distinction between fair use and copyright infringement cannot be determined by resort to any tixed rules or criteria. In each instance, the result must depend upon a variety of factors including:
1. The nature and purpose of the respective works.
3. The relation of the portions used to the respective works of which they are a part.
4. The impact of the use of these portions upon the demand for the copyrighted publication. An expression recently used by Judge Kaufman is particularly apt in describing one of the criteria of fair use. He said in Berlin v. E. C. Publications, Inc., 329 F. 2d 541 (2d Cir. 1964), at page 545 :
“At the very least, where, as here, it is clear that the parody has neither the intent nor the effect of fulfilling the demand for the original, and where the pa rodist does not appropriate a greater amount of the original work than is necessary to recall or conjure up' the object of his satire, a finding of infringement would be improper."
The relevance of these various criteria is found in the recognition that not all books serve the same function, have the same purpose, or enjoy the same market. What may constitute fair use when factual material is taken from a reference book may well constitute infringement if fictional material were taken from a novel. The greater liberality in permitting the use of material from reference works, textbooks, and other scholarly publications represents a public policy developed by the courts which seeks to reconcile the exclusive rights of a copyright proprietor with the requirements of an overriding public interest. Orford Book Co. v. College Entrance Book Co., 98 F. 2d 688 (2d Cir. 1938).
The courts have, on a number of occasions, dealt specifically with the doctrine of fair use in relation to legal reference books and source material. They have recognized that although these works are entitled to copyright protection, the extent to which they are protected must be judged in the light of the function which they serve and the purpose for which they are sold. Continental Casualty ('o. v. Beardsley, 253 F. 20 702 (2d Cir. 1958): West Publishing Co. r. Edward Thompson Co., 176 Fed. 833 (2d Cir. 1910); Eduard Thompson Co. v. American Lanc Book Co., 122 Fed. 922 (2d Cir. 1903).
Heretofore fair use has been applied by the courts in the absence of statutory provision. The express provision in H.R. 4347 fortifies the principle as a crystallization of legislative policy. Its application should satisfy all legitimate needs and requirements for the utilization of copyrighted material in all appropriate areas and by means of all appropriate devices. As Hon. Leon R. Yankwich. formerly judge of the district court of southern California, states in his article “What Is Fair ('se?" the determining factors are:
** * * whether there is 'fair use of the copyrighted material in any of the cases enumerated, the courts are governed by the exigencies of each situation. Given the diversity of instances, it is inevitable that no rigid rules can be applied to all situations. Nevertheless, certain tests have been evolved to determine whether the taking of copyrighted material does or does not exceed the limits of 'fair use.' They require consideration of (1) the quantity and importance of the portions taken ; (2) their relation to the work of which they are a part; (3) the result of their use upon the demand for the copyrighted publication. The first two elements are the subject of quantitative or qualitative analysis. As such, they are capable of measurement. The third element is, to some extent, conjectural" (22 U. of Ch. L. Rev. 203 at 212 (1951)).
Other discussions of fair use will be found in: Folsom v. Marsh, 9 Fed. Cas. page 342, No. 4,901 (C.C.D. Mass. 1841) ; Dun v. International Merchantile Agen(y, 127 Fed. 173 (S.D.N.Y. 1903) ; Bloom & Hamlin v. Nixon, 125 Fed. 977 (E.D. Penn. 1903): G. Ricordi ce Co. v. Jason, 201 Fed. 182 (S.D.N.Y. 1911); Karll v. Curtis Pub. Co., 39 F. Supp. 836 (E.D. Wis. 1941); Broadway Music Corporation V. F-R Pub. Corporation, 31 F. Supp. 817 (S.D.N.Y. 1940); Green v. Minzensheimer, 177 Fed. 286 (S.D.N.Y. 1909) ; Green v. Luby, 177 Fed. 287 (S.D.N.Y. 1709); Latman, Fair Use of Copyrighted Works, Copyright Office Study No 14; “Nimmer on Copyright," section 145.