*** adequately preserves the copyright formalities which help the user to know what music is in the public domain, where it is copyrighted, and who controls the copyright.34

A statement of the effect of the notice provision, from the standpoint of a businessman, appears in the testimony of Marvin Pierce, chairman of the Copyright Committee of the National Publishers' Association, a large organization of magazine publishers. He outlined the interest of his association in the following words:

*** our interest in copyright legislation is primarily that of the buyer who is interested in seeing that the title to the property he is acquiring is clear, and that the penalties of unknowingly using material bought from someone who is not entitled to sell are not unreasonably severe. This interest is no mean or casual affair. Our best estimate of the amount of money spent annually in the 10 largest magazines for editorial and illustrative material, subject to copyright, is $6,000,000. The commitments to readers and to advertisers in these same publications are many times greater. Since copyright law not only affects the title to the material purchased and used, but also jeopardizes the fulfillment of our commitments to readers and to advertisers, we would be derelict if we did not closely scan the provisions of any proposed changes to our statutes."

343

In explaining the opposition of his association to the Berne Convention, Mr. Pierce stated:

Our opposition is based primarily upon the business difficulties arising from the establishment of copyright upon creation, generally called automatic copyright, without the requirement of any formality or of registration, and the extension of this nebulous right in this country to the nationals of most of the countries of the world. The impossibility of checking the authenticity of submitted manuscripts and illustrations must be obvious.

The result can only be that purchasers of copyrightable material will be forced for their own protection to deal as much as possible with established sources. Such a result is damaging to both magazines and authors, since it is to the marked advantage of publishers to secure new writers and illustrators, and no deterrent to the acceptance of their work should be placed in the way of new and unknown writers.344

From the above-quoted statements, it may be concluded that those who spoke at the 1936 hearings with regard to the notice provisions seemed generally in favor of requiring notice as an aid to the user.

G. THE SHOTWELL COMMITTEE BILL AND OTHER DEVELOPMENTS, 1937-41

Various revisions of the Daly bill, which substantially incorporated the notice provisions of the Duffy bill, were introduced in both houses of Congress between 1937 and 1941; 345 although they attracted some attention, no action was taken on any of them. The most significant development during this period actually took place outside of Congress. A Committee for the Study of Copyright, headed by Professor James T. Shotwell of Columbia University, was organized within the framework of the National Committee of the United States of America on International Intellectual Cooperation, a group related to the League of Nations' Committee on Intellectual Cooperation; its purpose was essentially to draft a new general revision bill permitting the United States to join the Berne Union.346

342 Id. at 594.

343 Id. at 723.

344 Id. at 723-724.

345 H.R. 5275, 75th Cong., 1st Sess. (1937); S. 2240, 75th Cong., 1st Sess. (1937); H.R. 926, 76th Cong., 1st Sess. (1939); H.R. 4871, 76th Cong., 1st Sess. (1939); H.R. 6160, 76th Cong., 1st Sess. (1939); H.R. 9703, 76th Cong., 3d Sess. (1940); H.R. 3997, 77th Cong., 1st Sess. (1941).

340 GOLDMAN, A HISTORY OF U.S.A. COPYRIGHT LAW REVISION 1901–1954, at 10-11 [Study No. 1 in the present series of committee prints].

The Shotwell Committee, which was composed of representatives of most of the major groups interested in copyright, held a number of meetings during 1938 and 1939.347 The fullest discussion of the notice requirements occurred during one of the early sessions, at which representatives of the authors' groups urged the unfairness of a situation in which an author's rights can be irretrievably lost because of a technical error on the part of a publisher over which the author himself has no control. The motion picture representatives, on the other hand, maintained that the notice is of great value to users; and they argued for a stricter system of recording transfers of rights under a copyright. On the notice question, the position of the motion picture interests was summarized as follows:

When a man has common law rights, it is true he doesn't need any notice or registration of any sort, and can hold someone for infringement, but we must not forget he has only his common law rights so long as he withholds the work from publication, and then he has them perpetually, but once (excluding the fact that a performance is not publication) he puts it in print, he has no common law rights any longer, and people interested want to know whether or not the work is in the public domain. A proposal to permit publication without losing what would have been previously the common law rights, by not putting any notice on it, will make it extremely difficult to tell when works fall into the public domain.

At one point in the discussion it was suggested for the authors that, since users almost invariably conduct their own investigations rather than relying solely on the notice for information concerning the copyright, the notice actually serves no real purpose. A representative of the broadcasters replied:

That isn't invariably true. The convenience of notice to us is that it gives us the starting point ***. It is a great convenience for us to have that starting point. I am not saying that the author should lose all of his writings if the publisher omits doing it. I say it is good for us to have it and we would like to have it encouraged if not made compulsory, by making it attractive to do it.

The "Shotwell Committee" bill was introduced by Senator Thomas as S. 3043 348 on January 8, 1940. It provided that copyright was to be extended "without compliance with any conditions or formalities, " 349 and it would have restored (without prejudice to users who had already begun an undertaking) the copyright in works which had previously been published with defective notices. 350 The bill contained indirect recognition that notices of copyright could be used voluntarily,351 but included no indication as to the preferred form and position of the permissive notice, and offered no incentives for the use of such a notice.352 Section 17 (3) provided:

The failure to register any claim to copyright, or to record a grant, or to publish any work with notice of copyright, shall not affect the validity of any copyright or right therein, nor impair the rights of the author or other owner thereof, except as in this act otherwise expressly provided.

There were no hearings or further action on the "Shotwell Committee" bill. Nevertheless, it is of some historical importance, not only because of the thoroughness with which it was prepared, but also because it represents the last full-scale effort at reconsideration of the U.S. copyright notice requirements.

The records of the conferences have not been published, but have been collected and are available in the Copyright Office. 248. 3043, 76th Cong., 3d Sess. (1940).

Id. $2.

250 Id. 46(b).

851 Id. 17(3).

Section 14 of the bill provided that, unless copies of a work were deposited in the Copyright Office within a specified period, the copyright proprietor would be denied the right to obtain statutory damages.

H. DEVELOPMENTS, 1942-PRESENT

Identical bills aimed at liberalizing the present statutory notice requirements have been introduced in the last three Congresses by Representative Keating.353 The first was submitted on July 29, 1953, and the latest, H.R. 287, was introduced in the 85th Congress on January 3, 1957, and is still pending. No action on any of these measures has been taken.

The Keating bill, which would supersede sections 19 and 20 of the present copyright statute, attempts to meet most of the major difficulties encountered under the existing requirements, and to reduce the technical aspects of notice to a minimum. As an additional alternative to "Copyright," "Copr.," or "" the statement of claim could read "All Rights Reserved." Adopting the Universal Copyright Convention formula, the notice would be adequate if "placed in such manner and location as to give reasonable notice of claim of copyright." Various specific locations which would meet this general requirement are suggested, including the front cover of a work, or the 10 pages preceding or following the title page or first page of text. If the author is also the proprietor, a statement of his name on the title page or front cover would be sufficient as a statement of the copyright owner, even if unconnected with the statement of claim; this same general principle would apply to the date. Special provision is also made for the notice to appear on repetitive designs.

VII. REVIEW OF BASIC PROBLEMS

A. THE ISSUES RAISED BY COPYRIGHT NOTICE

The opponents of notice as a fundamental condition of copyright have attacked the general principle on four major grounds:

1. Notice is anomalous.-Everyone is entitled to the fruits of his labor; the notice requirement, which forces an author to make an affirmative claim or forfeit copyright protection, is in basic conflict with this principle.

2. Notice is anachronistic.-Most of the other countries of the world have no general notice formalities, and in clinging to the requirement the United States is hopelessly behind the times.

3. Notice is useless. Since anyone wishing to determine the ownership or expiration date of a copyright must necessarily go beyond the notice, it is in reality a meaningless technicality.

4. Notice is unjust and oppressive.-Many copyrights are lost because of technical defects in the notice over which the author had no control; an author is not a businessman and is not equipped to deal with complex formalities.

The leading arguments in support of a notice requirement may bẹ summarized as follows:

1. Notice is socially desirable.-No one is interested in copyrighting the large majority of published works but, without formalities, they would be pointlessly kept in the private domain for many years; this would inevitably hamper scholarship and free cultural interchange. 2. Notice fits the U.S. situation.-Far from being an outmoded concept, notice is increasingly needed to meet the demands for copy

888 H.R. 6608, 83d Cong., 1st Sess. (1953); H.R. 782, 84th Cong., 1st Sess. (1955); H.R.[287, 85th Cong., 1st Sess. (1957).

right information created by technological developments and the growing number of "secondary users."

3. Notice accords with the U.S. theory of copyright.-Copyright in the United States is a limited grant of a monopoly to provide an incentive to creation, rather than a natural right of the author. It is thus appropriate to require the author to fulfill certain conditions which are of benefit to the public.

4. Notice is effective in practice.-Notice fulfills a vital function in informing the public that a claim exists, and in providing users with at least a starting point for determining ownership and duration. The burden of affixing a notice is generally very slight.

These opposing arguments can be elaborated almost endlessly, and much support can be found for both points of view. It is not the purpose of this paper to reach conclusions, but simply to frame the basic issues presented by notice in the general revision of the copyright law. In essence, the arguments for and against a notice requirement may be said to revolve around two opposing aims:

On the one hand, to assure to all authors the benefit of copyright protection for all of their works.

On the other, to facilitate the dissemination of works, by allowing free use of works in which no claim to copyright is asserted, and by giving prospective users a readily available starting point for determining the ownership and duration of copyright when a claim is asserted.

B. ABOLISHMENT OF THE NOTICE

Complete elimination of the notice requirements has been urged by the author-publisher groups, as simplifying the securing of copyright. If notice were eliminated, there would also be no necessity for dealing with the complicated details of the notice requirements in various kinds of works. On the other hand, it has been urged that a provision. bringing all published works into the private domain would hamper the dissemination and scholarly use of copyright material.

C. INCENTIVES FOR VOLUNTARY USE OF NOTICE

One of the principal arguments advanced by the opponents of compulsory notice is the injustice of having copyright forfeited irrevocably for failure to observe the technical requirements of notice. On the other side, one of the principal arguments of those favoring notice is the importance of protecting innocent users, who had relied on the absence of notice, against liability for infringement. As noted above,354 some of the earlier revision bills have attempted to reconcile these opposing views by a system under which notice is a condition of certain remedies but not of the right itself. These bills would have permitted copyright to subsist without a notice, but would have limited the remedies against an infringer who relied on the absence of notice, either to an injunction against future infringement, or to a reasonable license fee.355

144 See Section VI, supra.

For a recent exposition of a solution along these lines for "formalities", see Finkelstein, The Copyright Law-A Reappraisal, 104 U. of Pa. L. Rev. 1025, 1054 (1956).

D. THE SPECIFIC NOTICE REQUIREMENTS

There has been general agreement that the notice provisions of the present law leave much to be desired. Some of the requirements are ambiguous, others are incomplete, and still others are ill adapted to present-day media of expression. By requiring the notice to meet very limited and specific conditions as to form and position, the present statute has appeared to many as unduly restrictive and as resulting in a number of cases of technically faulty notices.

Some of the objections to the present notice requirement might no doubt be minimized by a more liberal and flexible specification of the form and position of the notice. As to position, for example, consideration might be given to a provision along the lines of the Universal Copyright Convention, which provides that the notice be "placed in such manner and location as to give reasonable notice of claim of copyright." And as to form, it might be provided that an error in the name or the year date would not invalidate the notice, and could be cured by the recording of corrective data in the Copyright Office. If some form of notice is to be retained, consideration must also be given to the clarification of other details, including the notice on collections of copyrighted works, the requirement of a notice on works published abroad, the year date or dates in a revised edition, and the notice on a sheet reproducing a work repetitively. These questions, while of great practical importance, are subsidiary to the basic issues raised by the copyright notice. Analysis of detailed alternatives on these points is not within the scope of the present paper.

VIII. SUMMARY OF ISSUES

1. Should the copyright notice be retained as a mandatory condition of copyright protection?

2. If not, should incentives be offered for the voluntary use of notice, by limiting the remedies available against an innocent infringer, i.e., one who relies on the absence of notice?

3. If notice is made a condition for the availability of certain remedies, what should be the limitations on the remedies available against an innocent infringer?

(a) Should the innocent infringer be subject to an injunction? If so, should he be permitted to complete the undertaking innocently begun, unless the copyright owner reimburses him for his outlay?

(b) Should the innocent infringer be liable for a reasonable license fee for the infringing use?

(c) Should any other remedies be available against an innocent infringer?

(d) Should actual notice given to the infringer have the effect of removing his defense of innocence for undertakings begun thereafter?

4. If provision is made for either a mandatory or voluntary use of a notice:

(a) What, in general, should be the form of the notice?

(b) What provision should be made for the position of the notice?

(c) Should the notice requirement be applied to works published abroad?