CONTENTS I. Statutory provisions. II. Court decisions.. III. Opinions of the Attorney General_ IV. Cases dealing with other administrative officers.. V. Legislative proposals for revision of the copyright law. VII. Effect of registration and its refusal A. Probative effect of registration___. VIII. Summary of issues. AUTHORITY OF THE REGISTER OF COPYRIGHTS TO REJECT APPLICATIONS FOR REGISTRATION In the study by Prof. Benjamin Kaplan on "The Registration of Copyright" [Study No. 17 in the present series of Committee Prints], mention is made, on pages 27, 28, of the question of the authority exercised by the Register of Copyrights to refuse registration for copyright claims he believes to be invalid. The present study is an exploration of that question. I. STATUTORY PROVISIONS The Copyright Law, Title 17 of the United States Code, vests in the Register of Copyrights the administrative function of making registration of claims to copyright and issuing certificates of registration. There is no express provision in the statute delineating the Register's authority to refuse registration, but the extent of such authority may be gleaned from the various provisions specifying the works eligible for copyright and the requirements for securing copyright and obtaining registration. Section 4 provides that "The works for which copyright may be secured under this title shall include all the writings of an author." Section 5 provides that the application for registration shall specify to which of 13 enumerated classes the work belongs.1 The statutory requirements for securing copyright and obtaining registration may be summarized as follows. Section 10 provides that Any person entitled thereto by this title may secure copyright for his works by publication thereof with the notice of copyright required by this title ***2 Section 11 provides that Such person may obtain registration of his claim to copyright by complying with the provisions of this title, including the deposit of copies, and upon such compliance the Register of Copyrights shall issue to him the certificates provided for in section 209 of this title. Reading sections 10 and 11 together, it appears that for a claim to be entitled to registration under section 11, the claimant must be a "person entitled" to secure copyright, and he must have complied with the requirement that the work be published with the prescribed notice. In order for the claimant to be entitled to secure copyright, the work of course must be one in which "copyright may be secured under this title" (§ 4) and the claimant must be a qualified person (see § 9). 1 Section 5 provides further that this enumeration of classes "shall not be held to limit the subject matter of copyright as defined in section 4." But section 4 is not as all-inclusive as a literal reading of its language might indicate: cf. Capitol Records, Inc. v. Mercury Records Corporation, 221 F. 2d 657 (2d Cir. 1955), particularly the dissenting opinion of Judge Learned Hand. The form and position of the notice of copyright are specified in §§19 and 20. Section 10 requires that "such notice shall be affixed to each copy (of the work] published or offered for sale in the United States by authority of the copyright proprietor To state the matter conversely, it seems clear that a claim is not entitled to registration under section 11 if the "work" is not copyrightable, or if the claimant is not a qualified person, or if the work has not been published, or if the work has been published without the required notice. When copyright has been secured under section 10, it is eligible for registration under section 11. Title 17 elsewhere provides for the procedural requirements for obtaining registration: an application for registration must be made specifying the class of the work (§ 5) and giving the information which is required to be contained in the certificate of registration (§ 209); copies of the work as published-or substitutes must be deposited (§ 13); for certain books an affidavit of manufacture in the United States must be filed (§§ 16, 17); and the registration fee must be paid (§ 215). Further, section 207 provides: Subject to the approval of the Librarian of Congress, the Register of Copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this title.' It should be noted that under section 12 copyright may be secured for certain classes of unpublished works by the deposit of a copy of the work or substitute-with a "claim of copyright" for registration. It seems clear that registration under this section is limited to copyrightable works of the specified classes, when unpublished; and that an application, the copy or substitute-and the registration fee are required in order to obtain registration. Sections 208 and 11 provide that when there has been compliance with title 17, the Register of Copyrights "shall" make entry and issue a certificate. Mention should also be made of two other provisions of title 17, sections 13 and 209, which bear on the consequences of registration or its refusal. Section 13 provides that "no action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this title with respect to the deposit of copies and registration of such work shall have been complied with." The situation of a claimant who is refused registration but wishes to sue for an alleged infringement of what he contends is a valid copyright will be considered later. Section 209, after specifying the facts to be contained in the certifi cate of registration, provides that "said certificate shall be admitted in any court as prima facie evidence of the facts stated therein." This provision also will be considered later in connection with the Register's authority to refuse registration. II. COURT DECISIONS The earliest decision regarding the Register's authority to refuse registration when the subject matter is deemed not copyrightable is the case of United States, ex rel. Everson v. John Russel Young, As mentioned later, unpublished works of certain classes may be registered under §12, copyright being secured thereby. The present rules and regulations made pursuant to Section 207 appear in the Code of Federal Regulations, Title 37, Chap. II. Among other things, they state the procedural requirements for registration of copyrighted works; define in more detail the classes of works enumerated in § 5 of the statute; and mention examples of uncopyrightable material for which registration will not be made, as well as the fact that registration will not be made for works published without the required copyright notice. Librarian of Congress. This case was decided in 1898 when the Librarian of Congress had duties which are now performed by the Register of Copyrights. The relator, Everson, requested a writ of mandamus against the Librarian for refusal to record a copyright claim in a book that contained no written material. The court refused to issue the writ stating: *** I think it is very clear that this proposed publication, which, as already stated, is only book containing blank forms and does not contain a single English sentence is not a composition of any sort-does not come within the purview of the copyright law, and that if a mandamus should issue requiring the Librarian of Congress to record it under the copyright law, that act would be of no advantage whatever to the applicant for this writ. Any court would adjudge that it was not protected by the copyright law at all. Thus, the Librarian was held to be under no duty to record a copyright claim in a "book" which was found not copyrightable under the statute. In the case of Brown Instrument Co. v. Warner, Register of Copyrights, the Register had refused to register a copyright claim in a device, consisting of a graphic chart used as a part of a machine, which he deemed not copyrightable. The complainant sought a court order to compel registration. The circuit court upheld the lower court in denying the petition, stating that the evidence sustained the finding below that 7 Plaintiff has failed to establish that its charts are "writings of an author" or "drawings" within the meaning of the Constitution and the copyright statute. *** In the two cases of King Features Syndicate, Inc. v. Bouvé, Register of Copyrights, and Twentieth Century Fox Film Corp. v. Bouvé, it was held that the Register could not refuse to make registration for a claim that was entitled to registration under the statute. In both cases the plaintiff had sought to register claims to copyright in a collection of copyrightable materials in the form of "page proofs" which he contended had been published as a "book" before the republication of individual items in various newspapers. The Register had insisted that the page proofs were not a published book and that each item published separately in newspapers had to be registered separately. In both cases the court upheld the contention of the plaintiffs and required the Register to make the registrations. There was no question in these cases as to the copyrightability of the material; the issue was whether the collection was entitled to registration as a single publication in the form of page proofs. In the King Features Syndicate case the district court said: The defendant, as Register of Copyrights, has no power to refuse or deny registration of a claim of copyright which is entitled to registration under the Copyright Act. Whether an applicant or claimant has complied with the law so that his claim is entitled to be registered raises questions of fact and law to be decided by the court; the Register of Copyrights has not power to decide such questions, especially where the deposit of copies and the application filed, when read together as they should be, are in apparent compliance with the act. In any event, findings of fact and conclusions of law made by the Register of Copyrights may be reviewed by the court, and they are neither conclusive nor binding upon the court, and such findings and conclusions, if erroneous, may be rectified by this court. [Italics supplied.] 26 WASH. L. REP. 546 (Sup. Ct. D.C. 1898). 161 F. 2d 910 (D.C. Cir. 1947), cert. denied 332 U.S. 801 (1947). 748 USPQ 237 (D.C.D.C. 1940). 133 F. Supp. 463 (D.C.D.C. 1940), aff'd Bouvé v. Twentieth Century Fox Film Corp. 122 F. 2d 51 (D.C. Cir. 1941). |