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common law rights in unpublished works not registered, was left intact. Thus, unpublished works were to be protected in substantially the same manner as under the Act of 1909 and the present law, except that the privilege of securing statutory copyright by registration was extended to all classes of unpublished works.

The term of copyright was fixed at 56 years from the date of first publication; or, in the case of unpublished works, from the date of creation of the work as shown in the records of the Copyright Office and as indicated by the copyright notice affixed if and when the work was published or, in the absence of such notice and record as otherwise provided.201

b. The Sirovich bill.-In the respects with which we are here concerned, this bill was substantially the same as the Act of 1909. Copyright was secured by publication with notice.202 Copyright was made available for certain (but not all) classes of unpublished works by voluntary registration.203 Unpublished works not registered were left to common law protection.204 The term of copyright was fixed at 56 years from the date of publication or of registration of the work whichever was earlier. 205

c. The Daly bill.-The Daly bill was substantially similar to the Duffy bill in the respects here pertinent, except that the privilege of securing statutory copyright for unpublished works by voluntary registration was limited to specified classes of works 206 as in the Act of 1909 and the present law.

8. S. 3043 by Senator Thomas 207

In 1938, the Committee for the Study of Copyright of the National Committee of the United States on International Intellectual Cooperation (the "Shotwell committee") began studies on a general revision of the copyright law which finally resulted in the bill introduced by Senator Thomas.

This bill (sometimes referred to as the "Shotwell bill") provided for copyright in published and unpublished works from and after the creation of the work and without compliance with any conditions or formalities. 208 However, the failure to deposit copies of a published work or to deposit "a copy or manuscript of a completed unpublished work" made statutory damages unavailable.209

The term of copyright normally ran for the life of the author and 50 years thereafter,210 with the following exceptions: when the author of a work was not a natural person, copyright subsisted for 50 years from the date of creation of the work;211 copyright in an anonymous work was to expire 50 years from the date of first publication unless within such period the true name of the author, his address, and the

201 Sec. 15.

202 Sec. 9. 203 Sec. 11.

204 Sec. 2.

205 Sec. 22.

206 Sec. 11. The Daly bill also provided copyright protection for performers of copyrighted

works.

207 76th Cong., 3d Sess., introd. on January 8, 1940.

208 Sec. 2. Voluntary registration was provided for published and unpublished works: sec. 17(b). Grants of copyright or of any right therein could be recorded; recordation was constructive notice to all persons; a grant recorded in good faith by a grantee without notice would prevail over a period unrecorded grant: sec. 16.

209 Sec. 14.

210 Sec. 6.

211 Sec. 6(b).

title of the work were recorded in the Copyright Office and a copy of the work was deposited.212

Section 45 of the bill repeated Section 2 of the Act of 1909, thereby preserving common law protection of unpublished works; but because the Thomas bill granted copyright on creation, a proviso was added that the owner could elect either common law protection or statutory copyright. Any of the following acts constituted election of statutory copyright: publication of the work, deposit of a copy of the work in the Copyright Office, filing of an application to register the work, recordation in the Copyright Office of any grant or other written instrument in respect to the work, the commencement of any action or proceeding in any court based on any claim to statutory copyright, the assertion in writing of any claim to statutory copyright or of any right to remedies or proceedings for infringement of any such right.213

VI. ANALYSIS OF THE PROBLEM

INTRODUCTORY NOTE

Before the twentieth century, the dichotomy of common law rights for unpublished works and statutory protection for published works created few problems comparable to those of today: the general method of commercial exploitation then was through the publication of printed copies, and the performance of unpublished works could usually be controlled through possession of the manuscripts. Even during the discussions and hearings preceding the Act of 1909 there was no thought that phonograph records, for example, would outstrip printed copies as a medium of communicating and disseminating musical works to the public.214 Sound motion pictures and broadcasting as a means of public communication were unknown. Also unknown were the modern devices for capturing and reproducing visual and acoustic performances.

The reason that in 1909 unpublished lectures, musical and dramatic compositions, works of art, and photographs (followed in 1912 by motion pictures) were brought under the statute, was the fact that these classes of copyrightable works were often publicly performed or exhibited without, or before, being published in the form of copies. Mr. Bowker, who had a large share in the drafting of the 1909 Act, described the situation as follows: 215

The dramatic author and the musical performer receive recompense for their creative labor not so much from publication of their works in the printed form of a book as through their performance or representation, * ** as the artist receives remuneration not only for the reproduction and sale of copies, but also from the exhibition as well as sale of his original work.

The drafters of the 1909 Act therefore thought of an unpublished work in terms of a work capable of and "intended for oral delivery before it is printed in a book or periodical 216 and proposed that such a work "might be registered and protected for oral delivery before

212 Sec. 6(c).

213 Sec. 45.

214 The range of record repertoires was largely limited to operatic selections, renderings of brass bands, little salon and popular pieces. Recording was done by the acoustic method (amplification and electrical recording appeared in 1919) and the phonograph was almost exclusively used in the home. GELATT, THE FABULOUS PHONOGRAPH (1955) at 174, 308.

215 BOWKER, COPYRIGHT, ITS HISTORY AND ITS LAW (1912) at 162.

218 Id. at 59.

publication." 217 This innovation was further motivated by the knowledge that "the courts seemed disposed to protect a lecturer on the common law ground that the lecture read is not published by reading, and can be controlled as manuscript." 218 Even then, lectures, performances and exhibitions were presented to a limited audience, and the works involved could be controlled through possession of the manuscript, which was essential to the reproduction or performance of the work.

The developments since 1909 in the field of visual and acoustic mass communication, such as motion pictures, sound recordings, radio and television broadcasts, have made unpublished works accessible to audiences of millions. At the same time the development of devices for the quick and easy recording of sounds and images, by which works performed can be captured and readily reproduced without the manuscript or other copy, have destroyed the possibility of controlling the use of unpublished works through possession of the manuscript.

In the light of these developments, several features of the present law concerning works which, though not "published," are widely disseminated, may be thought to have become outmoded. For one, unless the owner of the common law rights chooses to register the work, he may disseminate the work publicly in every conceivable way except by publishing copies, and his rights continue perpetually in spite of the constitutional policy of copyright for a limited time. This fact may have been the impelling motivation for the recent pronouncements by some courts that the sale of phonograph records is such a publication of the work recorded as to terminate common law rights.219 The question whether the commercial sale of records is publication of the recorded work has become a source of great confusion. Thus, works reproduced only on records and widely disseminated in that form may or may not lose their perpetual common law protection and, unless registered prior to their being recorded, may not qualify for statutory protection.

On the other hand, works broadcast over radio and television to audiences of many millions throughout the country are considered unpublished, both under the common law and under the statute, because in both instances the courts still operate on the theory that performance does not constitute publication. The result is that these works enjoy perpetual common law protection unless voluntarily registered for copyright or published in copies.

It may also be anomalous that statutory copyright is not available for some classes of works-notably non-dramatic literary works other than those intended for oral delivery-until they are published in visual copies.

In the present situation there are also other areas of confusion as to what constitutes publication: in order to accord statutory copyright, the issue of a few copies with the notice of copyright has been held, in some instances, to constitute publication; conversely, in order to preserve common law rights, in other cases, the distribution of a considerable number of copies without the copyright notice has been

217 Id. at 90.

218 Ibid.

219 See supra III, 2. Cf. the dissenting opinion of Judge Learned Hand in Capitol Records v. Mercury Records, 221 F. 2d 657 (2d Cir. 1955).

considered "limited" publication and, consequently, not a forfeiture of the common law rights.

For the purpose of considering the possible revision of the present system of protecting unpublished works, the following three proposals will be discussed:

(1) To continue the system of alternative protection under the common law or by voluntary registration under the statute, but with the privilege of registration being extended to all classes of unpublished works.

(2) To extend the concept of publication to include all methods of public dissemination, by protecting under the statute all works made available to the public in any manner, and to limit common law protection to works which have not been made available to the public.

(3) To eliminate protection under the common law and to provide only for statutory protection for all unpublished as well as published works from creation.

1. Alternative Protection of All Unpublished Works Under Common Law or by Voluntary Registration

If the statute were to be extended to permit copyright in all unpublished works, the simplest method would be to provide for voluntary registration of all classes of unpublished works, preserving common law rights in those not registered. This could be done by simply broadening section 12 of the present law to permit registration of all classes of works.

As noted, the main reason for making certain classes copyrightable in unpublished form in 1909 was that these were the kinds of works commonly performed or exhibited before, or instead of, being published in the form of copies. Today, any class of works may be exhibited or performed without or before being published in printed form: e.g., poems are recited over the radio and prints or maps are shown on television. As to non-dramatic literary works-probably the most important category of works for which statutory copyright is not now available before publication-the amendment of section 1(c) in 1952, granting performing rights in them, expressly recognizes that they are capable of being performed or exhibited like dramatic, musical or artistic works which are now registrable in unpublished form. Moreover, a non-dramatic script may be made into a motion picture or used for a television broadcast, with the script itself never being published. The reasoning which in 1909 called for statutory protection of certain "performable" classes of works in unpublished form may well apply today to all classes of works.

The Copyright Office receives many applications and inquiries indicating a desire to obtain registration for unpublished manuscripts of non-dramatic literary works or other works that are not now registrable in unpublished form. Authors or distributors may desire to secure the statutory protection and record evidence afforded by registration before or during their negotiations for publication or other use of a work. Authors have sought various means of providing evidence regarding the existence and content of their unpublished works not registrable in the Copyright Office, for example, by mailing their manuscripts in sealed envelopes to themselves, or by depositing copies and having the date and other information recorded in the files of an authors' organization.

The system of maintaining common law protection, but permitting statutory copyright for all classes of unpublished works as a voluntary alternative, was proposed in the Duffy bill of 1935.220 The Sirovich bill of 1936 221 retained substantially the provisions of the present law on this point, but extended the privilege of securing statutory protection by voluntary registration to works prepared for broadcasting or recording; but it did not include other classes of unpublished works that are not now included under section 12. Under the Thomas bill of 1940 222 the owner could elect either common law protection or statutory copyright in an unpublished work of any class, registration being one means of electing statutory copyright.223

The continuation of the present alternative system, but extending the privilege of securing statutory protection, by voluntary registration, to include all classes of unpublished works, would have the merit of avoiding a radical change in our way of protecting unpublished works. At the same time, it would end the discrimination against those classes of unpublished works not now enumerated in section 12, so that authors or owners of all classes of unpublished works would be entitled to secure statutory copyright voluntarily. However, the presently existing uncertainties in regard to what constitutes publication, and particularly in regard to the sale of records as publication, would remain, unless resolved in some other context. Most important, unpublished works not voluntarily registered, though widely disseminated by performance or exhibition, would continue to have perpetual protection under the common law.

2. Statutory Protection After Public Dissemination; Common Law Protection Until That Time

a. General considerations.-The phrase "public dissemination" is used here in the sense of communicating a work to the public visually or accoustically by any method and in any form, whether permanently fixed or not. Under the proposal now considered, such public dissemination would terminate common law protection and bring the work under the statute (though the term would not necessarily be computed from the date of such dissemination). As long as a work had not been publicly disclosed in any way, protection would be afforded under the common law. 224

The Sirovich bills of 1932 225 used "public presentation" as the date from which the copyright term was counted, but proposed to abolish common law rights before such presentation of any work 226 and to substitute statutory copyright from the date of creation.227

The present proposal might be viewed as a logical extension, in the light of modern conditions, of the traditional concept of providing Federal statutory copyright for "published" works only. However, the word "published" would be interpreted in its widest sense, i.e., as

220 S. 3047, 74th Cong., 1st Sess. See supra V, 7.

921 H. R. 11420, 74th Cong., 2d Sess. See supra V, 7.

222 S. 3043, 76th Cong., 3d Sess. (commonly known as the Shotwell bill).

223 As to what other acts constituted election of statutory copyright under this bill see supra V, at pp. 19-25.

224 This might be combined with a system of voluntary registration prior to dissemination. 225 See supra V: 5, 6.

228 Sec. 37 of H.R. 10364; Sec. 38, H.R. 11948.

227 Sec. 6, H.R. 10364; Sec. 7, H.R. 11948. H.R. 10364 had no alternative term, which made the term presumably perpetual if there was no public presentation. Probably, this would have been in conflict with the constitutional provision of "limited times". Sec. 7

of H.R. 11948 closed this gap by providing for a term of three years after the death of the author if the work was not publicly presented.

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