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STATEMENTS, COMMENTS, OR ANSWERS
COPYRIGHT BILL FOR THE
(SEE ALSO MOTION PICTURE PRODUCERS)
(SEE PUBLICATION, AUTHORIZED)
I SEE ALSO DEATH DATES OF AUTHORS I
SCHOLARLY USES OF COPYRIGHTED
IMPACT OF MANUFACTURING
(SEE INITIAL OWNERSHIP OF COPYRIGHT )
(SEE WORK MADE FOR HIRE)
(SEE FEDERAL PRE-EMPTION OF RIGHTS EQUIVALENT TO
STATEMENTS, COMMENTS, OR ANSWERS BY.......1384-1385
STATEMENTS, COMMENTS, OR ANSWERS
I SEE MOTION PICTURES I
(SEE BUREAU INTERNATIONAL DE L EDITION MECANIQUE I
DEAR SIR: My name is Franklin Waldheim and I am eastern counsel of Walt Disney Productions. A copy of the accompanying statement has been signed by the following members of the Copyright Bar-in their individual capacity and, where indicated, on ehalf of the organizations specified opposite their names. Signed by
Representing Spencer C. Olin, Elliott H. Levi. Walt Disney Productions.
tas, and myself. Julian T. Abeles.
Music Publishers' Protective Association, Inc.
Harry Fox, agent and trustee. Leon Kellman--
American Guild of Authors & Composers. Harriet F. Pilpel-
American Society of Magazine Photographers.
Society of Magazine Writers.
Composers & Lyricists Guild of America, Inc. I enclose 50 copies of this letter and the accompanying statement. Respectfully yours,
FRANKLIN WALDHEIM, Attorney at Law and Counselor at Lar.
COPYRIGHT AND THE DEATH PENALTY Since 1802 our law has required some form of copyright notice. The public has been accustomed to seeing it and, while other countries get along very well without it, it does not seem in order to dispense with this tradition. However, failure to affix the copyright notice results, under our present law, in forfeiture of the copyright. This has seemed to be a cruel punishment to inflict for such a trifling offense.
The Register of Copyrights, in his supplementary report on the general rerision of the copyright law, states that sections 401 through 405 of the pending bill "represents 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." These sections do, indeed, offer some escape from the harsh severity of the present law but leniency is afforded only under conditions with which it may sometimes be impossible to comply.
Section 404 provides that omission of the notice does not invalidate the copsright-but only if the notice has been omitted from no more than a relatively small number of copies or if registration has been made within 5 years after publication (and a reasonable effort is made to add the notice after the omission has been discovered). Suppose, then, that a work is published and distributed to the public in large numbers with no adequate copyright notice affixed. The only way to avoid forfeiture would be to register the work within 5 years. But the author and the publisher may never notice the omission until an infringement action arises more than 5 years after the publication. It would then be too late to correct the error by registration.
Thus copyright is still condemned to death because of the failure to comply with a formality. The pending bill offers a chance of survival only if farorable conditions prevail. Commonsense would dictate life for the copyright in all circumstances.
A copyright notice may be affixed but, if there are certain errors in it, the work will be deemed to have been published without any notice under section 405 (b) and (c). In some cases, the affixation of a notice to the copies presents insoluble problems. Suppose the copyrighted work is reproduced in the form of an earring or a bracket charm. How does one affix a legible copyright notice? (The courts have held that attaching a tag with the notice does not comply with the statute. Trifari v. Steinberg-Kaslo, 144 F. Supp. 577.)
Where a copyrighted work is later issued with some revisions, the copyright owner must decide at his own peril what copyright date to use whether to use the original date or whether the revisions will be held to be sufficiently substantial to constitute the revised edition of a new work. A wrong decision as to the date can, under section 405 (b), condemn the work as having been published without any notice.
Whenever, under the pending bill, the copyright is saved from forfeiture, section 404 (b) protects the innocent infringer who was misled by the omission of notice. Its provisions seriously impair the copyright owner's rights to damages and profits and to an injunction—but they do not destroy the copyright. These same provisions could apply to any omission of notice, but at the same time the copyright could be preserved. Why does not section 404(a) simply read as follows:
“(a) EFFECT OF OMISSION ON COPYRIGHT.—The omission of the copyright notice prescribed by sections 401 and 402 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work."
Would such a provision tempt copyright owners to dispense with the copyright notice? Of course not. Omission of the copyright notice would seriously limit the owner's rights to damages, profits and injunctive relief under section 404 (b). This section fully protects the innocent infringer who has been misled by the absence of a notice and it would also induce the copyright owner to include the copyright notice to preserve his full rights and remedies. At the same time the law would once and for all put an end to the ruthless forfeiture of copyrights because of a failure (almost certain to be inadvertent or unintentional) to comply with a formality.
The writers, composers and artists of America are not lawyers. They are dedicated creators who strain every faculty to contribute to the culture and happiness of our people. They are not publishers. They are not printers. Their works are reproduced and distributed through others. Why should their creations be confiscated because someone forgot a "c" in a circle?
WESTMINSTER THEOLOGICAL SEMINARY,
Philadelphia, Pa., March 11, 1965. Representative RICHARD S. SCHWEIKER, House Office Building, Washington, D.C.
DEAR MR. SCHWEIKER: As a resident of Wyndmoor in Montgomery County, I appreciate your sending us information from time to time through your Speaks Frankly.
May I call to your attention the fact that hearings are to begin soon in Subcommittee No. 3 of the House Judiciary Committee on the copyright laws. However, it has one bad feature which I hope can be eliminated in the preliminary stages. There are certain types of technical printing involving, for example, foreign language alphabets which can be done either not at all in this country or else only at great expense. At present, type of this sort may be set up abroad, then a "reproduction proof" is taken and sent to this country where the book is printed by offset and bound. This sort of procedure would lose copyright under the new law, while it is possible under the present law. I hope that this privilege may be continued in the new law. Our printing industry is making excellent progress in this country even with this feature in the present law. We have in Philadelphia one of the best printers of this sort in the world, Maurice Jacobs, Inc., and they are making good progress under present conditions. It would be unfortunat hamper Americ scholarship by making the production of some books so expensive that they could not be printed. Sincerely yours,
PAUL WOOLLEY, Professor of Church History.