as unworkable, and copyright proprietors, with the sanction of the courts in most cases, have developed customs and usages on the basis that copyright is divisible. Various subsidiary rights have been created and are marketed separately-for example, magazine serial rights; book club rights; motion picture rights; and synchronization rights. The copyright has also been licensed for a period of time or for a particular territory. Tension between theory and practice under the existing law has produced some strange and, more importantly, some unjust results in those cases where the courts have not been able to accommodate copyright theory to commercial reality. The revision bill would recognize in the clearest possible terms the divisibility of copyright, and allow copyright owners to transfer any part of their rights established by section 106 of the Bill. Any part not transferred would remain their property. This principle of divisibility of copyright is contained in clause (2) of section 201 (d) which permits transfer of any of the exclusive rights or any subdivision of any right. This principle is reinforced by a definition in section 101, providing that a transfer of copyright ownership includes "an assignment, mortgage, exclusive license, or any conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright . . ." The divisibility concept applies whether the transfer is limited in time or place.

Involuntary transfers

The revision bill emphasizes the fundamental principle that copyright derives from authorship and therefore all rights vest initially in the author or authors. Special provisions are made for works made for hire and collective works. Although the bill also recognizes the possibility of transfers by operation of law, such as mortgage foreclosures and bankruptcy proceedings, these are consistent with the author's freedom to transfer his rights since he has voluntarily acted in some way to subject himself to these traditional legal proceedings.

A different case is presented by the possibility of involuntary transfer of an author's rights by a governmental act of expropriation. In response to this issue, the revision bill contains a provision in section 104 (c) denying effect under United States law to any act of expropriation by a foreign government or governmental organization. The principle that this subsection is intended to reflect very likely exists already in our law, but it has not been specifically tested in the courts. Another approach to this question would extend the applicability of the principle against expropriation to any government, including the United States or any subdivision of it. Therefore, it may be more appropriate to state the principle in general terms in a new subsection following subsection (d), which establishes the divisibility principle.

SECTION 202: DISTINCTION BETWEEN COPYRIGHTS AND MATERIAL OBJECTS

The language of section 202 makes clear that, unless an author has expressly transferred his rights in a particular work, his sale of a material object (for ex ample, a manuscript or a painting), does not carry with it his copyright in the work.

SECTION 202: DISTINCTION BETWEEN COPYRIGHTS AND MATERIAL OBJECTS

Summary

Under Section 24 of the present law, copyright as a general rule reverts at the end of the first term of 28 years to the author if living or, if the author is not living to other specified beneficiaries, if an application for renewal is made within the 28th year of the original term. This reversion-renewal provision was intended to give authors a "second chance" to reap the benefits of their creative efforts. In practice, the second chance often does not materialize because the author has assigned the contingent rights in the renewal term well before his right vests, and his assignee reaps the benefits of the renewal term if the author survives until the renewal vests. Failure to comply with the registration formality also leads to unintended forfeiture of copyright in many cases.

The revision bill drops the renewal device, but permits the author or his widow, children or grandchildren to terminate any grant he himself has made of his rights after 35 years (or up to 40 years in certain situations). In order to effect termination, an advance written notice, signed by a proportional majority of those owning a termination interest would have to be served on the grantee within specified time limits. Grantees would be given the equivalent of a right of "first refusal," and grantees who have made derivative works during the 35-year period could continue to use them in any event.

Background

In the initial stages of drafting the revision bill one of the most difficult issues was the problem of how to protect authors against unremunerative transfers, while getting rid of the complexity, awkwardness, and unfairness of the present renewal provision.

To individual authors the principle of reversion is extremely important, since they are frequently in an unequal bargaining position and the value of a work before exploitation is uncertain. This position was challenged by representatives of publishers and motion picture producers, among others, who argued that authors generally are not in an economically disadvantageous position, especially since they assume none of the risk of loss involved in the exploitation of their works.

Analysis of Section 203.-Despite these conflicting views, an acceptable if rather complicated compromise was adopted. Instead of being automatic, as is theoretically the case after 28 years under the present renewal provision, a transfer or license under section 203 could be terminated only by means of an advance notice within specified time limits and under specified conditions. However, although affirmative action is needed to effect a termination, the right to take this action cannot be waived in advance or contracted away. Under section 203(a) the right of termination would apply only to transfers and licenses executed after the effective date of the new statute, and would have no retroactive effect.

The right of termination would be confined to inter vivos transfers or licenses executed by the author, and would not apply to transfers by his successors in interest, or to his own bequests. The scope of the right would extend not only to any "transfer of copyright ownership," as defined in section 101, but also to nonexclusive licenses. The right of termination would not apply to "works made for hire," which would exempt works prepared by an employee within the scope of his employment and certain works prepared on special order or commission.

Summary

CHAPTER 3, SECTION 301

FEDERAL PRE-EMPTION

Instead of the present dual system of protection of works under state common law before they are published and under Federal statute after publication, the bill would, under section 301, establish a single system of statutory protection for all works whether published or unpublished. The common law would continue to protect works (such as live choreography and improvisations) up to the time they are fixed in tangible form, but upon fixation they would be subject to exclusive Federal protection under the statute, even though they are never published or registered.

Background

Any effort to revise the copyright law of the United States must include consideration of the merits and drawbacks of our present system of dual copyright: "common law copyright" for unpublished works under State law, and statutory copyright for published works under Federal law. This dual system of copyright has been in effect since the first U.S. Copyright Act of 1790, and turns on the rather outdated concept of "publication."

In the 1961 Report of the Register on the General Revision of the U.S. Copyright Law it was suggested that the concept of "publication" should be clarified and broadened into a concept of "public dissemination," but that the general framework of the dual system should remain intact. This suggestion met with strong opposition, primarily on the grounds that "public dissemination" of a work was not a reasonable or practical basis on which to establish Federal copyright protection. Although there was some support for retaining common law copyright, the overwhelming sentiment was in favor of a single Federal copyright system with protection starting upon creation and with a limited term for all works, published or unpublished, disseminated or undisseminated.

Section 301 therefore establishes a single Federal copyright system with respect to all works created after its effective date, whether or not they are ever published or disseminated. With respect to works created before the effective date of the statute and still under common law protection, section 303 of the statute provides protection from that date on, and guarantees a minimum period of statutory copyright.

Advantages of a single Federal system

Essentially, four significant arguments have been advanced in favor of the single Federal system. These arguments can be summarized as follows:

(1) Promote national uniformity.-One of the fundamental purposes behind the copyright clause of the Constitution was to promote national uniformity and to avoid the practical difficulties of determining and enforcing an author's rights under the differing laws and in the separate courts of the various States. Today, when the methods for dissemination of an author's work are incomparably broader and faster than they were in 1789, national uniformity in copyright protection is even more essential than it was then to carry out the constitutional intent.

(2) Reduce Legal Significance of "Publication.”—Perhaps the most serious defect in the present law is its undue reliance on the outdated concept of "publication." Although at one time, when works were disseminated almost exclusively through printed copies, “publication" could serve as a practical dividing line between common law and statutory protection, this is no longer true. With the development of the 20th-century communications revolution, the concept of publication has become increasingly artificial and obscure. To cope with the legal consequences of an established concept that has lost much of its meaning and justification, the courts have given "publication" a number of diverse interpretations, some of which are radically different. Not unexpectedly, the results in individual cases have become unpredictable and often unfair. A single Federal system would clear up this chaotic situation.

(3) Advance "Limited Times" Provision of Constitution.-Enactment of section 301 would implement the "limited times" provision of the Constitution, which has become distorted under the traditional concept of "publication." Common law protection in "unpublished" works is now perpetual, no matter how widely they may be disseminated by means other than "publication." The revision bill would place a time limit on the duration of exclusive rights which could be asserted on such works. The provision would also aid scholarship by making unpublished manuscripts available for publication after a reasonable period.

(4) Promote International Exchange of Intellectual Property.-Adoption of a uniform national copyright system would greatly improve international dealings in copyrighted material. No other country has anything like our present dual system. In an era when copyrighted works can be disseminated instanteously to every country on the globe, the need for effective international copyright relations, and the concomitant need for national uniformity, assume ever greater importance.

Recent developments concerning the dual system of copyright

Section 301 has been one of the bedrock provisions of the current program for general revision of the copyright law since the introduction of the first revision bill in 1964. General support for a single Federal system of copyright has been widespread and, until recently, the wording as well as the underlying intent behind section 301 appeared to be consistent with the judicial trend of limiting the rights of States to enforce rights similar to patent and copyright protection. Recently, there have been some new developments concerning the judicial stance on the dual copyright system, and Congress may be asked to consider changing some of the wording in section 301. These developments were the immediate result of the phenomenon of tape piracy, the lack of Federal protection for sound recordings fixed before February 15, 1972, and the activities of many of the States aimed at deterring tape piracy within their jurisdictions. The problem of tape piracy was not addressed at the Federal level until 1971, when Congress enacted P.L. 92-140 providing both civil and criminal remedies against piracy of published sound recordings fixed after February 15, 1972. In the meantime, many States had enacted statutes of their own against the practice, and the constitutionality of a California criminal law on the subject was raised in Goldstein v. California 412 U.S. 546 (1973). In a 5-4 decision, the Supreme Court uphe'd the constitutionality of the statute as it related to sound recordings fixed and first published before February 15, 1972, on the ground that Congressional inaction concerning pre-1972 sound recordings did not preclude State action.

In reaching this decision, the Court did not specifically modify its earlier ruling in Sears v. Stiffel Co. 376 U.S. 225 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964) holding that the States could not protect patentable subject matter against copying because of the conflict with the objectives of the patent (and inferentially the copyright) system. The Sears/Compco

decisions did not, however, deal with copyright specifically, and this enabled the Court to reach a decision sustaining State law in the Goldstein case without touching on them. The rationale of Goldstein was applied in a recent case involving trade secrets, Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974). Again, the Court did not overrule Sears/Compco, although there appear to be different views of the Federal system underlying these decisions.

Subsection (a)

ANALYSIS OF SECTION 301

Pre-emption of State common law or statutory copyright.-It is the intention of section 301 to pre-empt and abolish any right under the common law or statutes of a State that are equivalent to copyright and that extend to works coming within the scope of the Federal copyright law. In order to carry out this purpose an effort was made to draft section 301 in the clearest and most unequivocal language possible, so as to foreclose any possible misinterpretation of its unqualified intention that Congress shall act pre-emptively, and foreclose the development of vague borderline areas between State and Federal protection. Exclusive Federal jurisdiction.-Under section 301 (a), "all rights in the nature of copyright" (which are specified as "copyright, literary property rights, or any equivalent legal or equitable right") are governed exclusively by the Federal copyright statute if the work is of a kind covered by the statute. All corresponding State laws, whether common law or statutory, are pre-empted and abrogated. Regardless of when the work was created and whether it is published or unpublished, disseminated or undisseminated, in the public domain or copyrighted under the Federal statute, the States cannot offer it protection equivalent to copyright. Section 1338 of title 28, United States Code, also makes clear that any action involving rights under the Federal copyright law would come within the exclusive jurisdiction of the Federal courts.

Subsection (b): Rights not equivalent to Copyright Preserved.-Although States would be prevented from protecting works coming within the general subject matter categories of sections 102 and 103 against activities within the general area protected by copyright law, protection under State law continues in several important respects. Subsection (b) of section 301 explicitly lists three general areas left unaffected by the pre-emption: (1) unpublished material outside the subject of copyright; (2) causes of action arising under State law before the effective date of the statute; and (3) violations of rights that are not equivalent to any of the exclusive rights under copyright. Examples of the latter rights are actions for breach of contract, breach of trust, defamation, and deceptive trade practices.

In view of the recent Supreme Court decisions in the Goldstein and Kewance cases, referred to above, Congress should reconsider the wording of section 301, and subsection (b) in particular. The word “unpublished" in clause (1) of subsection (b) is probably inconsistent with the Goldstein decision, and additions to the specific references in clause (3) appear justified by this judicial trend.

Summary

DURATION OF COPYRIGHT

SECTIONS 302-305-DURATION

The present U.S. law with respect to the duration of copyright was enacted in 1909, but is based directly on a system dating back to the first copyright statute in history, the Statute of Anne adopted by the English Parliament in 1710. It has been retained as a relic of the past in this country long after it was abandoned in England, and long after England and almost every other country in the world has adopted a copyright term based on the life of the author.

U.S. copyright now endures for 28 years from the exact date of first publication, or, in the case of works registered in unpublished form, the date of registration. It can be renewed for a second period of 28 years. In one of the most fundamental changes in the revision bill, copyright protection would be based on the life of the author plus 50 years after the author's death, with exceptions for joint works, works of unknown authorship, and works made for hire.

Advantage of “Life-plus-fifty” system

Present term too short.-With the significant increase in life expectancy since 1909, the longer term would ensure the opportunity for authors and their dependents to share equitably in the economic benefits from their creative works. This

is especially important in view of new communications technology which has substantially lengthened the commercial life of a great many works. Often works of music, literature and art are not recognized for their true worth for decades; under the present system an author may well outlive his copyright and see his work fall into the public domain shortly after it becomes recognized and profitable for others.

International standards.-Nearly all countries in the world have copyright laws, and virtually all of them except the United States base their copyright term in the life of the author. A duration of the life of the author and fifty years after his death (sometimes referred to as "fifty years post mortem auctoris" or "50 years p.m.a.") became the governing international copyright term in 1928, and the 1948 Brussels revision of the International (Berne) Convention for the Protection of Literary and Artistic Works made this term a mandatory minimum for all member countries. A large majority of the world's industrialized countries have accepted or augmented this international standard.

As a practical matter it is to the advantage of American authors for the United States to adopt the same system. Copyrighted material moves across national borders more quickly and easily than any other economic commodity. The present and potential uses of new communications technology, including satellites, underscore the need for uniformity, thereby facilitating international dealings in copyrighted materials.

Simplicity. Duration of copyright is far simpler and easier to administer on the "life plus fifty” basis than on the present basis where the public must determine a multitude of publication dates and distinguish "old" from "new" material in later editions in order to use the work. With technological changes in the means of dissemination, the concept of "publication" has become vague and often meaningless. Under the revision bill, all the works of an author would fall into the public domain at the same time, and the Copyright Office would maintain a registry of the dates when authors died.

Elimination of renewal requirement.-Another important, related feature of the revision bill is the elimination of the renewal system. The renewal provision of the current law is a highly technical and rigid formality, and it often results in the unfair and unintended loss of copyright protection.

Section 302: Duration of works created after effective date of new law

Basic term.-Section 302 establishes the basic "life-plus-fifty" term for works created after the revision bill comes into effect, and provides special terms to cover cases where it is impossible or impracticable to base the term on a single individual's life.

Joint works. In the case of joint works by two or more authors who did not work for hire, the fifty-year period is measured from the date of the death of the last surviving author.

Anonymous and pseudonymous works. In the case of an anonymous or pseudonymous work, the term endures for seventy-five years from the year of its first publication or one hundred years from the year of its creation, whichever expires first. If the identity of the anonymous or pseudonymous author is revealed in the records of a registration, the term would be based on the life of the identified author plus fifty years. In addition, any interested person may record a statement of death of an author of a copyrighted work, or statement that the author is still living on a particular date.

Works made for hire.-A "work made for hire," which is defined in considerable detail in section 101, is also subject to a term of seventy-five years from first publication or one hundred years from creation, whichever is shorter. Since under section 201(b), the employer is considered the "author" of a "work made for hire," it would be inappropriate to base the term on the author's life in such

cases.

Presumption of author's death.-The bill also specifies that, after a period of seventy-five years after first publication or one hundred years after creation of a work, whichever expires first, users are entitled to rely on a presumption if they have no knowledge of whether or when a particular author died. Any person who obtains from the Copyright Office the proper document, indicating that the records disclose nothing to show that a particular author is still living or died less than fifty years before, is entitled to the presumption that the author has been dead for at least fifty years.