of certain photographs and where the author was an employee for hire.186 Subject to the same general exceptions, the author is the owner of copyright under the new English statute.187 Where his name appears on the copies, he is presumed to be the owner; where his name is missing, then a publisher whose name does appear will be presumed to be the owner of the copyright at the time of publication.188 These provisions become even more important where copyright without notice is combined with a term dependent upon the life of the author. During the debates on the new British copyright law, there were long discussions of the rights in works commissioned for publication in newspapers and magazines, and these provisions were changed on several occasions. The upshot was a compromise in which the publisher secured newspaper and magazine rights, but thereafter, copyright reverted to the author. The authors regarded this as— an unwarrantable departure from the basic principle that copyright vests in the creator of a work unless and until he chooses to part with it or with an interest in it by express contract. At every stage in the Bill the Society [of Authors] and its supporters have fought for the reinstatement of this basic principle * * * 189 Any system of copyright without formalities would have to be adapted to the needs of American business practice. At present, the author is rarely the first copyright proprietor in the case of periodicals or music, nor is he always the copyright proprietor in the case of books. The function of the publisher in the United States is different here than it is abroad; in the case of music, for example, the printing of sheet music has become a minor part of the work of the publisher. The control of rights is an important bone of contention between authors and publishers, and authors believe that— The author as creator of the property is fundamentally the person properly entitled to the ownership of all the rights therein. The idea that ownership of copyright should properly vest in any person other than the creator, is an anomoly and is repugnant to commonsense; and its existence is an error in our American jurisprudence.190 It is conceivable that a reconciliation of the divergent points of view of the author and publisher might be worked out on a practical industry basis, but divisibility, particularly without formalities, would seem to make it necessary to specify in the law who is the initial copyright owner.191 1. Right to sue VI. SUMMARY OF ISSUES (a) Should the law include a provision permitting an exclusive licensee to sue without joining his grantor? (b) Should such a provision be restricted to exclusive licensees of enumerated rights? 2. Joinder of parties (a) Should the law permit the joinder within the discretion of the court of 1. Any interested party, or 2. Any person named in an assignment or license recorded in the Copyright Office? 186 Report of Copyright Committee, Cmd. 8662, at 98 (1952). 187 Copyright Act, 1956, 4 & 5 Eliz. 2 c. 74, §§ 4, 20. 188 Id. §§ 20(4), 37. 189 The Author, 2-3 (Autumn 1956). 190 Assignment of Copyright to the Author, 9 Authors' League Bulletin 4-5 (1921). 191 Cf. S. 3043, 76th Cong., 3d Sess., § 8 (1940). (b) Should there be a provision dealing with avoidance of overlapping suits or damages, e.g., barring suit by an exclusive licensee unless he has recorded his license in the Copyright Office? 3. Recordation (a) Should the law require recordation of all assignments and licenses, as against third parties without notice? (b) If there is such a provision, should it exclude nonexclusive licenses? (c) Should recordation be permissive? (d) If permissive, what effect should be given to recordation, and what should be the effect of failure to record? 4. Divisibility (a) Should the law contain a specific clause making copyright divisible? (b) Would this be necessary or advisable if the statute provided for the right of exclusive licensees to sue, joinder of parties and recordation? (c) If copyright is made divisible, should there be a list of the rights in which separate ownership will be recognized for the purposes of suit? (d) Should there be any restriction on how far rights may be divided as to time or territory? 5. Notice (a) If the statute provides for copyright notice either as a requirement or optionally, should partial or exclusive licensees be permitted to substitute their name in the notice: (b) If such substitution is permitted, should the notice be required to indicate that the person named holds only certain rights? If so, what should be the effect of omitting such indication? (c) Should there be an exemption for contributions published in newspapers and periodicals, waiving specific notice for the contribution where a general notice on the entire work is used? If so, should the author whose name appears on a contribution be deemed the copyright owner, subject to his assignment or license to the publisher? APPENDIX 1909-40: LEGISLATIVE BATTLE FOR DIVISIBILITY Early attempts to revise the 1909 statute were concentrated on adherence to the Berne Convention and sought to amend the law only to the extent felt absolutely necessary to permit adherence to the Convention. Al Later bills included complete revisions of the statute both because it was felt that fundamental changes were required to bring us into the Convention and to cure defects in the existing law. The more elaborate_bills all included sections on divisibility. On March 24, 1924, Representative Dallinger introduced H.R. 8177.42 This bill provided for copyright in the complete work and each copyrightable part, A3 and the right to assign or license the entire copyright or any right and limit it for a certain time or territory. The assignee or licensee became the owner of the particular right or rights as though they were several and distinct, and could record the transfer in the Copyright Office. As A revised version of this bill was introduced on May 9, 1924, A6 and divisibility was considered at hearings beginning on May 15, 1924.A7 The motion-picture attorneys who had drafted the measure As wanted a bill which gave the author a "solid right to transfer," A and laid special emphasis upon the necessity of recording all transfers. A10 In 1925, the Perkins bill, H.R. 11258, drafted by the Register of Copyrights and sponsored by the Authors' League, was introduced. All The bill permitted the written assignment or license of any of the separate rights listed in the bill, for limited times or specified territories. A12 Both assignments and licenses could be recorded in the Copyright Office and assignees could sue, but not before their assignments were recorded. A13 There were special provisions for periodicals: under section 13, the periodical publisher secured only a license to print and publish, in the absence of an agreement to the contrary.A4 A periodical could sue for infringement under its general copyright, but it had no such power when it held only a license under section 13.415 At hearings on the bill, the Register, supported strongly by the author groups, pointed to the need for a division of rights and clear title. A16 The motion-picture producers and periodical publishers opposed the bill, preferring the earlier Dallinger bill; A17 the periodical publishers objected to the special provisions covering periodicals. A19 In the next Congress, the Perkins bill was reintroduced, A18 and a new bill, A omitting the features objected to in H.R. 11258 by the periodical publishers, was submitted by Representative Vestal. There was no real disagreement on the necessity of "making the copyright divisible" but the motion-picture producers and the periodical publishers supported the new Vestal bill and opposed passage of the Perkins bill. A20 Al Goldman, A History of U.S.A. Copyright Law Revision 1901-1954, at p. 4 (Study No. 1 in the present series of committee prints.) A2 68th Cong., 1st Sess. A3 Id. § 7. A Id. §§ 45, 46. AS Id. § 46, 47. A H.R. 9137, 68th Cong., 1st Sess. AT Hearings Before the House Committee on Patents, 68th Cong., 1st Sess. (1924); AS Id. at 337. Ale Hearings Before the House Committee on Patents, 68th Cong., 2d Sess. at 84 (1925). A17 Id. at 428; Hearings Before the House Committee on Patents on H.R. 10434, 69th Cong., 1st Sess. 117 (1926). A18 H.R. 5841, 69th Cong., 1st Sess. (1925); Cf. §§ 15, 17, 18, 34, 35, 36. A19 H.R 10434, 69th Cong., 1st Sess. (1926); Cf. §§ 9, 11, 21, 23. A Hearings Before the House Committee on Patents on H.R. 10454, 69th Cong., 1st Sess. at 117, 120, 248 (1929). The Vestal bill formed the basis of some later bills on the subject of divisibility. It specifically provided for the written assignment or license of the entire copyright or any rights comprised therein," for a limited time or specified territory. A21 It also enabled any person securing such a right or interest to protect and enforce such rights as he held, in his own name. A22 It stated that all the rights comprised in a copyright are "several, distinct, and severable," and that the assignee or licensee of any of these rights was to be treated "for all purposes, including the right to sue,' as the owner of such rights. A23 Licenses and assignments could be recorded in the Copyright Office; failure to file did not affect the validity of the instrument, but no unrecorded instrument was to be valid against any previously recorded document of a transfer for value without notice. A24 An exception to this last rule requiring recordation was made in the case of instruments by which magazine or newspaper publication rights were assigned or conveyed. A25 The The desire for "divisibility" was great, and a separate bill was introduced in 1927 to provide that "all rights comprised in a copyright are several, distinct, and severable." A26 In essence, this bill tried to secure "divisibility" by amending three sections of the existing law on assignment, recordation and, damages. provisions were borrowed from the original Vestal bill and later amended to include more detailed language for the joinder of other parties. Hearings were held; A27 almost everyone spoke for "divisibility" but disagreed on the details. A:8 The authors wished to secure the original copyright in a magazine contribution; the periodical publishers stated that they had no objection to divisibility, as alleged during discussion on the Vestal bill, and favored it-provided there were appropriate safeguards. A29 The bill was reported out with a favorable recommendation and placed on the House Calendar, but no further action was taken at that session; it was introduced in the next Congress. A A30 In its report, the House committee found that, as new inventions had put new methods at the service of the author for the exploitation and production of his work, the author had been handicapped by the fact that, although he could license separate uses of his work, he could not "sell" such separate rights. A31 Some users wanted more than "merely a license or exclusive license to use. Such licensee cannot bring suit to protect the rights ***" A32 The committee found that the bill achieved this purpose, enabled the licensee to sue to protect his right, and safeguarded the rights of all owners by providing for notice to other owners. A33 The committee felt it preferable to provide for notification and permission to appear rather than giving the court power to compel attendance of any party who might seem to have an interest. A34 With Further hearings were now held, at which the representative of the Authors' League called the bill "the most important piece of copyright legislation that has ever been reported out of a committee since the Copyright Act of 1891." A35 the addition of provision for interpleader, the motion-picture interests and the book publishers supported the bill.A36 The periodical publishers agreed that the principle of the bill was sound, but indicated that they were perfectly happy under the existing law, and that "under the proposed act we should not have quite that assurance that we have now." A37 The periodical publishers approved the bill but asked for "a little clearer delimitation of the rights of the various assignees," A38 i.e., that the bill specifically provide that other assignees could not exercise any right until after serial publication had been completed. The Shubert interests opposed the "divisible portion" of the bill because of the fear that it would strengthen the hand of the dramatist and enable the dramatist to sell competing motion-picture rights while the play was still running. A39 At the time, the Basic A21 H.R. 10434, 69th Cong., 1st Sess., § 9 (1926). A22 Id. § 9. A23 Id. §3. A24 Id. § 11. A25 Ibid. A26 H.R. 16808, 69th Cong., 2d Sess. (1929). A27 Hearings Before the House Committee on Patents on H.R. 16808, 69th Cong., 2d Sess. (1927). A29 Id. at 28. A30 H.R. 8913, 70th Cong., 1st Sess. (1928). A31 H.R. REP. NO. 2225, 69th Cong., 2d Sess. 2 (1927). A32 Id. at 3. A33 Ibid. A34 Ibid. A35 Hearings Before the House Committee on Patents on H.R. 8918, 70th Cong., 1st Sess. (1928). A36 Id. at 53, 82. A37 Id. at 44. A38 Id. at 47. A39 Id. at 57. |