8. Translation rights Two Western Hemisphere nations have important statutory provisions making the right of translation dependent upon the use of a notice. The pertinent section of the statute of the Dominican Republic states plainly that "the author of a work shall only have the exclusive right of translation into any other language when he so states expressly in all published copies." 273 The Nicaraguan provision reads as follows: ARTICLE 751. An author shall be entitled to reserve to himself the right to publish translations of his works, but in such cases he shall indicate whether the reservation is limited to any given language or extends to all languages.274 9. Performing rights It has already been pointed out that the original Berne Convention of 1886 contained a provision requiring that the copies of a musical composition bear an express reservation in order for the author to enjoy the exclusive right of public performance.275 This requirement was abrogated in 1908, but there are remnants of it in a few national laws. The requirement is still given full effect in the statute of Thailand; the pertinent section reads as follows: The authors of unpublished musical works shall be protected against the unauthorized public representation of their works. If the works have been published the authors shall be protected against unauthorized public representation of the works, provided that the authors have expressly declared on the title page or commencement of the works that such performance is forbidden.276 The laws of Hungary 277 and the German Federal Republic 278 both retain provisions concerning the "performing rights notice" to appear in works copyrighted before those laws came into effect-in 1921 and 1910, respectively. It also seems likely that, with respect to their treatment of certain foreign works under the "Berne" Conventions, there are still countries which may apply the "notice" requirement in this situation. 10. Miscellaneous notice provisions There are several other "notice" provisions which, although worthy of mention, defy systematic grouping. While Iran does not have a copyright statute, a circular of the Ministry of National Education provides that an edited compilation of previously uncollected works may be copyrighted if, at the end of the volume, a notice reading "Publication rights reserved" appears.279 In Yugoslavia, the reproduction of works of art in newspapers and journals is not an infringement of copyright unless expressly forbidden by the artist.2 280 The Turkish statute permits any published work to be "lent for a fee" without the author's consent, "unless expressly forbidden in a statement appearing on the copies."' 281 The Russian copyright law provides that any kind of work may be publicly exhibited without the author's consent, except those works whose public exhibition has been forbidden.282 273 Law No. 1381 of Mar. 17, 1947, art. 18. 274 Decree promulgating the Civil Code, Feb. 1, 1904. 275 See Section V. B. supra. 276 Act of June 16, 1931, § 8. 277 Law of Dec. 29, 1921, § 85. 278 Act of June 19, 1901, as amended, § 61. 27 The circular is dated March 30 or 31, 1936. 280 Decree enacting the Law, May 25, 1946, § 16(9). 281 Law of Dec. 10, 1951, art. 38. 282 Joint Resolution of May 16, 1928, § 9(m). In Mexico 283 and Rumania 28 the right to restrain certain educational uses of copyrighted works depends upon an express reservation of the right. And the statutes of Denmark 285 and the U.S.S.R.286 permit the use of poems as the texts of musical compositions unless this right has been expressly reserved. Penalties for the false or fraudulent use of a copyright notice are provided in the laws of several countries. Among these is the statute of Peru, 287 which contains no other notice provision; this seems an implicit recognition that persons may voluntarily use a notice, though no incentives are provided. C. PROVISIONS RELATED TO NOTICE 1. Anonymous and pseudonymous works: Presumptions as to authorship, ownership, and term Most of the copyright laws of the world contain provisions concerning anonymous and pseudonymous works; these generally deal with presumptions as to authorship and copyright ownership, and the duration of copyright protection. Fairly typical of these provisions, which find their prototypes in the "Berne" Conventions, are the following excerpts from the Copyright Statute of Switzerland: 288 ARTICLE 8. IV. PRESUMPTION OF AUTHORSHIP Anonymous and pseudonymous works. In the absence of proof to the contrary, the following persons shall be deemed to be the author of a work: (1) the physical person whose true name is indicated upon copies of the work in the manner generally used to designate the author; in the case of works of art and photography, the application of a distinctive sign of the author shall be regarded as equivalent to his name; In the case of a published work of which the author is not indicated in accordance with the provisions of clauses (1) and (2) above, the person who has caused the work to appear, or if such person is not designated, the publisher, shall be responsible for the safeguarding of the copyright; the person who caused the work to appear, or the publisher, shall, in the absence of proof to the contrary, be deemed to be the successor in title of the author. ARTICLE 37 2. Anonymous or pseudonymous works even if they are posthumous works. (1) The protection of an anonymous or pseudonymous work shall terminate 50 years from the time when it was first made public. (2) If the pseudonym leaves no doubt as to the identity of the author, or if the author disclosed his identity during the period indicated in the preceding paragraph, the term of protection shall be [the life of the author plus fifty years]. These provisions rest upon the principle that, in order to base ownership and term of copyright upon the individual author, notice of his name must be given to the public. Essentially the same principle underlies notice provisions, such as those of the United States, requiring the name of the copyright owner and the copyright date. Thus, the many sections dealing with anonymous and pseudonymous works may, in this sense, be regarded as "notice provisions." Any detailed analysis of the provisions relating to anonymous and pseudonymous works is outside the scope of this paper, but a few such Law of Dec. 29, 1956, art. 59. Decree of June 18, 1956, art. 14(c). Law No. 149 of April 26, 1933, § 14(d). provisions are worthy of special mention. For example, the Danish statute provides that the copyright for works of joint authorship shall terminate 50 years "from the last day of the year of death of the last surviving author," but adds that: If the work has been published, only those authors who are named in the published work or in connection with its public performance shall be taken into account with respect to this provision.289 Likewise, under certain circumstances, the Nicaraguan statute 290 bases the term of copyright upon information appearing in the work: Article 764. The period which, in certain cases, is indicated for the duration of copyright shall be calculated from the date of the work; if this date is not indicated on the work, then from January 1 of the year following the publication of the work, or of the last volume, loose sheets or part which completes it. In addition to establishing presumptions based on the name of the author given in a work, the statutes of Germany 291 and Venezuela 292 (which are very similar on this point) prescribe specific locations on the work where the name is to appear. Under the German law, the name should be indicated "on the title page, in the dedication, preface, or at the end"; and for contributions, it is sufficient if the name appears "at the head or the end of the contribution." The most interesting provision of this type is found in the statute of Mexico.293 and reads as follows: Article 14. In the absence of proof to the contrary, the person whose name, or known or registered pseudonym, is indicated as the author of a protected work shall be presumed to be the author. The competent Courts shall, in consequence, allow such persons to take legal action for infringement of their rights. In the case of anonymous or pseudonymous works whose authors have not disclosed their identity, the action may be brought by the publishers of the works, but this right shall cease as soon as the author or the copyright owner becomes a party to the proceedings. In cases where the publisher acts, he shall be deemed to act as owner of the copyright and with the responsibilities of an agent. The use of an anonymous work shall be free as long as its author does not make himself known. The author shall have a period of thirty years, reckoned from the first publication of the work in which to do so. In all cases, after the lapse of this period, the work shall pass into the public domain. The third paragraph of this article appears to provide, not only that the term of copyright for anonymous works shall be limited to 30 years from publication unless the author's name is divulged, but also that the work shall be completely free for use until disclosure is made. This seems inconsistent with the second paragraph, which purports to allow the publisher of an anonymous work to act on behalf of the author; but, taken at face value, this provision would make use of the author's name on the work, or disclosure of his identity, an essential condition of copyright protection. 2. "Moral right" provisions A number of statutes dealing with the so-called moral right of the author require, under various circumstances, that the author's name be affixed to all copies of his works. While the intention behind these provisions is not that of notifying the public concerning ownership and duration, to some extent they have that practical effect. 289 Law No. 149 of April 26, 1933, § 21. 290 Decree promulgating the Civil Code, Feb. 1, 1904. 291 Act of June 19, 1901, as amended, § 7. 192 Law of June 28-July 13, 1928, art. 9. 393 Law of Dec. 31, 1956. VI. PROPOSALS SINCE 1909 FOR REVISION OF THE NOTICE REQUIREMENTS A. THE DALLINGER BILL, 1924 One of the earliest of the general revision bills designed to permit the United States to become a member of the Berne Copyright Union was H.R. 9137,294 which was introduced by Representative Dallinger on May 9, 1924. The bill provided that no notice was to be required as a condition of copyright, but permitted the use of a notice consisting of the word "Copyright" or the abbreviation "Copr.", accompanied by the name of the copyright proprietor.295 The places for affixing the notice, if one was used, were also prescribed; these were essentially the same as the positions required by the present law, except that the notice for a contribution to a periodical was to be placed "at the foot of the first page of text or under the title or caption." 296 Among the proponents of the Dallinger bill's provisions on copyright without mandatory notice requirements was Louis E. Swarts of the Motion Picture Producers and Distributors of America.297 He criticized the provisions of the present law, arguing that the loss of many copyrights through failure to meet technical notice requirements was an injustice. B. THE PERKINS BILL, 1925 H.R. 11258,298 which was introduced by Representative Perkins on January 2, 1925, was an important early general revision bill drafted by Thorvald Solberg, the Register of Copyrights.299 Section 1 provided: That copyright is secured by this Act for all the writings of authors from the time of the making of their works, whether published or unpublished, for the term of copyright protection hereinafter provided. Such copyright shall vest in the author of any such work immediately upon the making of the work and shall not depend upon the accomplishment of any conditions or formalities whatever: *** [there followed a provision for optional registration for purposes of preserving evidence]. Section 44 provided: No notice of copyright shall be required on any work subject to copyright under this Act and the omission of such notice from any work shall not be taken as evidence that no copyright is claimed therein; but if desired a notice of the reservation of the copyright or of any right included in the copyright in any work may be placed on any or all copies of such work by the owner of the copyright or the assignee or licensee of any special right pertaining to the copyright in the work; [there followed a penalty provision for fraudulent notice]. In order to facilitate identification of the copyright owner, the bill provided that the person named as author on the work was presumed to be the author, hence the copyright owner,300 and that assignments were to be recorded in order to be valid against subsequent purchasers; 301 no action for infringement could be brought by an assignee until the instrument under which he claimed had been recorded.302 Hearings Before the House Committee on Patents on H.R. 6250 and H.R. 9187, 68th Cong., 1st Sess. 313322 (1924). H.R. 11258, 68th Cong., 2d Sess. (1925). Hearings Before the House Committee on Patents on H.R. 11258, 68th Cong., 2d Sess. 12 (1925). 201 Id. § 18. 203 Id. § 34. Representatives of various author groups, including the Artists' Guild,303 the Authors' League of America,304 and ASCĂP,305 testified strongly in favor of the bill. They argued that authors should be entitled to copyright protection without the added burden of technical formalities which, as artists rather than businessmen, they are not really equipped to handle. In their opinion the copyright notice was not a real advantage to legitimate users and the public, since it could not be relied upon for determining the facts of copyright protection, but simply provided a trap for the unwary. One of the opponents of the bill, representing the Motion Picture Owners of America, 306 argued that since copyright is a statutory privilege rather than a natural right, to grant it automatically and indiscriminately would be inconsistent with the public interest. In particular, he maintained that copyright without mandatory formalities would interfere with the progress of the motion picture industry. C. THE VESTAL BILLS, 1926-31 The four general revision bills introduced by Representative Vestal from 1926 to 1930 307 contained substantially the same provisions concerning the copyright notice. The last of the four, which was introduced as H.R. 12549 308 on May 22, 1930, came closest to enactment; it passed the House of Representatives on January 13, 1931,3 309 but, although it was reported out of the Senate committee,310 it was not reached for a vote in the Senate. Section 1 of H.R. 12549 provided that copyright be granted to authors "without compliance with any conditions or formalities whatever, from and after the creation of their work." Section 34 freed all copyrighted works, including those copyrighted under previous statutes, from the requirement of a notice, but provided for a voluntary notice which could be placed in certain positions on the work: No notice of copyright shall be required on any work copyrighted under this Act, nor after this Act goes into effect, as to works copyrighted under previous Acts. The omission of such notice from any work shall not be taken as evidence that no copyright is claimed therein nor affect the validity of the copyright therein. Nevertheless, a legible notice of copyright or a notice with reference to any right included in the copyright in any work may be placed on copies of the work by the owner of the copyright or an assignee or licensee. Such notice shall, if applied in the case of a book or other printed publication, be placed upon its title page or the page immediately following, or upon any of the first ten, or the last ten pages of text; or in the case of a contribution to a periodical, such notice shall be either placed as aforesaid or under the title or at the foot of the first page of said contribution; *** [followed by a penalty provision for fraudulent notice]. Section 35 would have validated copyrights lost under earlier laws because of defective notices: In the event that prior to the passage of this Act notices of copyright were placed upon any works which were defective in form or did not contain the name of the person or persons actually entitled to copyright or contained an incorrect name or 303 Hearings, supra note 299, at 63-69. 304 Id. at 383-388, 504-510. 305 Id. at 145-192, 512-523. 306 Id. at 95-116. 307 H.R. 10434, 69th Cong., 1st Sess. (1926); H.R. 8912, 70th Cong., 1st Sess. (1928); H.R. 6990, 71st Cong., 2d Sess. (1929); H.R. 12549, 71st Cong., 2d Sess. (1930). 209 H.R. 12549, 71st Cong., 2d Sess. (1930). 300 74 CONG. REC. 2080-2081 (1931). 310 S. REP. NO. 1732, 71st Cong., 3d Sess. (1931). |