comprising any method by which a work may be communicated to the public, including reproduction and distribution of visual or acoustic copies, live or recorded or broadcast public performance, or public exhibition. Perpetual common law rights would then exist only in works such as private letters and manuscripts which have not been disclosed to the public in any manner. Works which are now considered "unpublished", when publicly disseminated, would be protected only under the statute for a limited time, without the alternative of perpetual common law protection.

In connection with this proposal, consideration must be given to the questions that would arise as to the duration of the copyright term and the applicability of any requirements of notice, deposit and registration, with respect to works publicly disseminated other than by the publication of visual copies.

b. Term of copyright for disseminated works.-The term of copyright for works disseminated otherwise than by the issuance of copies might conceivably be based on the date of dissemination, or the date of registration (if registration of such works were required; or if not required, where registration is made voluntarily, but a different base would then be needed for such works not registered), or on the life of the author. To some extent, the choice of a term for such works might depend upon the term chosen for works published by the issuance of copies.228

Some observations should be made here regarding the term for unpublished foreign works entitled to protection under the Universal Copyright Convention.

Paragraph three of Article IV, 2 of the UCC permits computation of the period of protection from the date of the first "publication" of the work, or from its registration prior to publication, or upon the basis of the life of the author. "Publication" is defined in Article VI of the UCC as "the reproduction in tangible form and the general distribution to the public of copies of a work from which it can be read or otherwise visually perceived." This definition is obviously much narrower than "public dissemination": it does not cover the distribution of sound recordings or the presentation to the public by broadcast or any other public performance. As the copyright term under the UCC must be for a minimum of 25 years from either publication as defined above, or from registration prior to publication, or from the death of the author, the date of first public dissemination is not acceptable as the starting point of a fixed term of years for copyright in any foreign work entitled to protection under the UCC.

Similarly, the term for such foreign works could not be computed from registration (except when voluntarily registered) since Art. III, 4, of the UCC requires that unpublished works be given protection without formalities, and hence registration could not be required.

No conflict with the UCC would exist if the copyright in foreign works disseminated otherwise than by "publication" were to subsist until the end of 25 or more years after the death of the author.229 It

228 The relative merits of basing the term on each of the alternative starting points were discussed in the study on "Duration of Copyright" by James J. Guinan [Study No. 30 in the present committee print].

229 Should a work later be "published" in the sense of Art. VI, UCC, a new term could begin to run from such publication for a fixed number of years. This would be permissible under the UCC and would be in consonance with the present U.S. system in regard to works not registered in unpublished form.

may be argued that in the interests of uniformity and simplicity the same term should be provided for domestic works so disseminated.

A term for a number of years after the death of the author, however, would still leave an unsolved problem. Under section 26 of the present U.S. copyright law an employer is considered the author of a work made for hire. Such an employer frequently is a corporation.230 Moreover, a work may be disseminated with the author not being identified. Corporate and anonymous authorship creates no problem as to term where, as in the present law, the term runs for a fixed number of years from registration or publication, respectively; but if the life of the author were the factor determining the duration of copyright, special provisions would have to be made as to the term of protection for unpublished works created in the employment of corporations or disseminated anonymously, for which a "date of death" cannot be determined.

The laws of foreign countries on this question have been discussed above. To summarize: Since most foreign countries do not recognize corporate authorship, their laws do not generally deal with the question of copyright in unpublished corporate works. There are a few exceptions to the rule as, for instance, in regard to photographs, designs or motion pictures, for which several countries provide a term based on the date of creation, or, in a few instances, on the date of dissemination. In dealing with collective, anonymous, and pseudonymous works, foreign laws usually provide for a term running from publication, or, in a few countries, from dissemination, but make no specific provision for unpublished or undisseminated works in these categories. Some foreign laws provide generally for initial copyright ownership in (if not authorship of) legal entities; and here again, the usual copyright term for such works, as for anonymous and pseudonymous works, runs from publication or, in a few countries, from dissemination, with no provision being made for a term for unpublished or undisseminated corporate works.

For corporate and anonymous works which are publicly disseminated but not published in the form of visual copies, none of the copyright terms provided for in the UCC in regard to unpublished works could be applied: the date of registration cannot be used (except where registration is made voluntarily) since the UCC does not permit a requirement of registration for unpublished works; and the date of the author's death cannot be applied to a corporate entity or to an anonymous work. Since the UCC contains no provision for such works, it may be argued that for corporate and anonymous works not published in visual copies, a term based on the date of public dissemination would be permissible under the UCC.231

The UCC, of course, has no application to works of domestic authors. It is therefore possible to provide for a term, for domestic works which are not "published", on any of the bases mentioned above.

230 A sample analysis made by the Copyright Office for the six months period from January to June 1955 showed a total of 108,467 registrations of which 61.2 percent were for works by individual authors and 38.8 percent for works by corporate or group authors. See Appendix A to the study on Duration of Copyright" by James J. Guinan [Study No. 30 in the present committee print].

231 The Main Commission at the General Conference of 1952, where the UCC was adopted, decided that it was not necessary to include a provision on corporate, anonymous, or pseudonymous works. Report of the Rapporteur General on Art. II, Records of the Intergovernmental Copyright Conference, Geneva 1952, pp. 76, 77. Such works would be treated according to the provisions of the national laws.

However, to have one term for domestic works and a different term for foreign works might be the source of some confusion as it would become necessary to ascertain, for any particular work, whether it is domestic or foreign, in order to determine the duration of copyright.

c. Formalities.-If a system of formalities such as notice, deposit and registration were to be maintained for works published in visual copies, the question would arise whether these formalities should be extended to works publicly disseminated by means of public performance or by the distribution of acoustic records.

As a practical matter, it would seem to be unrealistic to require a notice which would usually have to be given orally-at every public performance of a work. Moreover, the reasons for requiring a notice on published copies, which stem from the fact that copies can readily be reproduced or used, have little or no application to public performances.

The case of acoustic records of works may be quite different. Such records are readily capable of reproduction and use in much the same way as visual copies. The reasons advanced for a notice requirement-for example, to apprise persons having copies of the copyright claim and its initial ownership-would seem to apply to records as well as to visual copies. There appears to be some warrant, therefore, for the view that if a notice is to be required for visual copies publicly distributed, that requirement should be extended to acoustic records so distributed.

However, a notice could not be required on acoustic records of foreign works entitled to protection under the UCC. As previously pointed out, the distribution of records is not "publication" under Art. VI of the UCC, so that works distributed only in the form of records are "unpublished" works under the UCC for which, under Art. III, 4, protection must be afforded without formalities. It is only for "published" (visual) copies of a work that the UCC (Art. III, 1) permits a notice requirement for copyright protection.

Whether a deposit and registration system applicable to works published in visual copies could or should be extended to works disseminated by public performance or by the distribution of acoustic records, would seem to depend upon the nature of the system. Registration as a wholly voluntary matter could be made applicable to all works however disseminated, or even if not disseminated. Registration as a condition for protection could not be required for foreign works entitled to protection under the UCC. Perhaps registration as a condition for extraordinary remedies, such as statutory damages, would be consistent with the UCC, as long as the failure to register did not affect the existence of the copyright and the availability of other remedies.

d. Protection before public dissemination.-The proposal now being considered-to bring works under the statute upon their public dissemination in any manner-would continue the system of common law protection for works not so disseminated. Thus, manuscripts and private letters would have protection under the common law against their unauthorized disclosure to the public, for an unlimited time unless and until an authorized disclosure is made.

The historical theory of copyright law in the U.S. has been to protect private manuscripts against public disclosure, under the common law, for as long as the author or his successors choose to withhold the work from the public. When the publication of visual copies was virtually the only means of making works accessible to the public, only works so published were withdrawn from protection under the common law. Under present day conditions, the same theory might be thought to require that works made accessible to the public by other methods of dissemination-the distribution of acoustic records or public performance-be withdrawn from common law protection and be given statutory protection for a limited period of time; but works not disclosed to the public in any manner could still be left to common law protection in line with the historical theory.

More positively, it can be argued that in the interests of respecting privacy, undisclosed manuscripts and letters should be considered as common law property without time limit unless and until the author or his successors choose to disclose them to the public.

This, in essence, is the result reached in the United Kingdom 232 and in Canada,233 where the copyright statutes provide that copyright in works not disseminated in any manner during the life of the author continues until 50 years after they are disseminated.

This matter will be considered further in the discussion below of the alternative of having the copyright statute provide for a limited term of protection for all unpublished works.

Another matter that deserves consideration, if undisseminated works are left to common law protection, is that of providing for voluntary registration, thereby securing statutory copyright, for undisseminated works. Such registration, which either the author or other owner of the work or a prospective user may desire for his greater protection, could be equated with dissemination, or a statutory term could begin from registration.

3. Statutory Protection Only for All Works

a. General considerations.-We turn now to the third proposal for dealing with unpublished works: to discontinue common law protection entirely and extend the statute to cover all works from their creation. This proposal-which is found in several of the previous general revision bills 23 differs from the second proposal discussed above in that even works not publicly disseminated in any manner would be entitled only to statutory protection. Under the proposal now considered, undisclosed works such as manuscripts and letters would also be given a statutory copyright term after which they would go into the public domain.

As previously pointed out, it may be argued that the privacy of authors should be respected by protecting their undisseminated writings against unauthorized disclosure for an unlimited time 235 unless and until they or their heirs or assigns choose to make the disclosure.

232 U. K. Copyright Act, 1956, sec. 2.

233 Revised Statutes of Canada, 1952, Ch. 55, sec. 6.

234 See supra V, at pp. 19-25: Dallinger bill, R. 9137; 68th Cong. 1st Sess. (1924); Perkins bill, H.R. 11258, 68th Cong., 1st Sess. (1925): Vestal bill, H.R. 10434. 69th Cong., 1st Sess. (1926); Herbert bill, S. 176, 72d Cong., 1st Sess. (1931); Sirovich bills, H.R 10364 and H.R. 11948, 72d Cong., 1st Sess. (1932).

235 This, of course, would mean leaving the protection of such works to the common law. Protection under the Federal statute would necessarily be for a limited time.

Thus, the author and his heirs may wish to withhold from the public his less successful works which, in their opinion, might detract from his reputation; or they may wish to keep from the public writings which contain the author's personal observations regarding contemporary persons or events. On the other hand, it can be argued that after a considerable period of time after the death of the author and his contemporaries, the sensitivity of their remote heirs is no longer entitled to the same consideration,236 while the accessible "private" writings of the author may be of great interest to scholars, historians, and the public in general. The author or his heirs, or others in possession of his "private" writings, may of course destroy any writings which they believe should never be disclosed; but if these writings remain in existence, there may be a public interest in eventually allowing anyone in possession of an old manuscript to make it available for research or publication without the risk of infringement claims by remote and unknown heirs.

b. Duration.-Assuming that such undisseminated works should eventually go into the public domain, the period of protection against unauthorized disclosure should probably be long enough to avoid any substantial invasion of the privacy of the author and his contemporaries, and of their families for at least the next generation. The term of protection might be for a substantial number of years after the author's death.237

A different term would have to be provided, of course, for undisseminated works of corporate or anonymous authorship. For such works the term of years might run from the date of creation.

If, during the term provided for undisseminated works, such a work were registered or published or otherwise publicly disseminated, the consideration of privacy and secrecy would drop out; and if a different term were provided for works registered, published, or otherwise disseminated, that term might then be made applicable.

c. Formalities.-Even if a notice requirement were retained for distributed copies of a work, there would seem to be no purpose in requiring a notice on the manuscript of an undisclosed work. Similarly, any requirement of deposit and registration could not appropriately be applied to works which the author or owner wishes to withhold from public disclosure. However, the author or other owner may wish to register a work not yet disclosed when he contemplates its publication or other dissemination; and for this purpose, voluntary registration might be provided for.

d. Pre-existing unpublished works. The proposal to have all unpublished works protected under the Federal statute only, with common law protection being eliminated, might raise a constitutional

236 In exceptional cases there is always the possibility of an action for criminal libel of a deceased person if the defamation of the dead person is rightly so much resented by surviving relatives that it tends to disturb the peace. State v. Haffer, 94 Wash. 136, 162 Pac. 45 (1917).

237 For foreign works entitled to protection under the Universal Copyright Convention, a term of at least 25 years after the author's death would fulfill the requirements of the Convention.