Section 303: Works created but not published or copyrighted before effective date

Since works still under common law protection on the effective date of the new statute will be brought under the federal law at that point, a question arises as to the term of federal protection to be given them. Constitutional due process questions could be raised if old unpublished works, theoretically protected perpetually under common law, were suddenly thrown into the public domain or given an unreasonably short term.

Thus, under section 303, pre-existing works that are not already in the public domain are given the regular copyright term provided in section 302, but with the proviso that under no circumstances would the term of protection expire before December 31, 2001 (25 years from the projected effective date). The provision also encourages publication by providing an additional twenty-five years of protection (through December 31, 1026) for works published before the end of 2001.

Section 304: Duration: subsisting copyrights

Section 304 is a transitional provision, but an important one. It deals with two types of subsisting copyrights: (1) those in their first twenty-eight year term, and (2) those already in their second, renewal term, including some copyrights whose renewal terms have been extended.

With respect to the first type, section 304 provides that any copyright subsisting in its first term on the effective date will continue to have a first term of 28 years from the date it was originally secured, with a right to a renewal term of 47 years, thus extending the total potential copyright term to 75 years. As under the present renewal system, application for the renewal term must be submitted within one year before expiration of the original term of copyright by the same specified renewal claimants. The reason for retaining the renewal provisions of the present law during this transitional period is that many of the present expectancies in these cases are the subject of existing contracts, and it would be unfair and confusing to cut off or alter these interests.

In the case of subsisting copyrights already in their renewal term when the new law comes into force, the term is automatically extended to a total of 75 years from the date when copyright was originally secured.

For both types of subsisting copyrights (those in their first 28-year term and those in their second, extended renewal, term), section 304 sets out detailed provisions governing the termination of grants conveying future interests in the extended terms. The approach is closely patterned on the reversion provisions of section 203. The objective is to permit the author or his statutory beneficiaries to receive the real benefit of the extended term. For this reason, they are given termination rights under specific conditions, including timely notice to the assignee. A five-year period is provided for effecting a termination, but it does not begin until 56 years have passed from the date copyright was originally secured. In this way, the contracts entered into on the basis of the present law remain unimpaired, but the assignee does not get a "windfall" through the extension of the term.

Section 305: Terminal date

Following the pattern adopted in many foreign laws, section 305 allows all copyright terms to run through the end of the year in which they would otherwise expire.

CHAPTER 4

COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

General considerations

Chapter 4 provides for a substantial liberalization of the formalities required by the Copyright Act of 1909. The reforms in the areas of notice and registration are meant to reduce substantially any unfairness to authors who fail to meet these statutory requirements. Under the current statute, failure to comply strictly with the formalities resulted in harsh penalties, often the complete loss of copyright protection. The revision bill is intended to preserve the values of a system of notice, registration, and deposit while greatly ameliorating its barsh effects.

Summary of key provisions

Copyright notice.-The present law requires that, as a general condition of copyright protection, all published copies of a work bear a copyright notice (for example: " 1975 Leonard Jones"). The revision bill calls for a notice on published copies, but omission or errors would not result in automatic forfeiture of the copyright and could be corrected within reasonable time limits. Innocent infringers misled by the omission or error would be protected from liability. Deposit and registration.—Under the present law, deposit and registration are combined as copyright requirements for certain purposes. They are prerequisites to an infringement suit and can be demanded by the Register of Copyrights, but are not, strictly speaking, a condition of protection. The revision bill would make registration and deposit separate formalities which could, and usually would, be combined. Subject to certain exceptions, the extraordinary remedies of statutory damages and attorney's fees would not be obtainable for infringements occurring before registration is made. Works published with notice of copyright that are not registered are nevertheless subject to a mandatory deposit requirement. Deposit is not a condition of copyright protection, but failure to deposit after a demand by the Register of Copyrights can result in certain penalties.

Policy considerations

SECTIONS 401-406-COPYRIGHT NOTICE

Rigidity of present law.-One of the principal criticisms of the present copyright statute is directed at the rigidity and unfairness of the provisions requiring a notice of copyright as a condition of protection. Unintentional omission of the notice and comparatively small errors in its form and position have caused forfeiture in many cases. It has been argued that, because of the injustices, the notice requirements should be eliminated entirely.

Value of notice. This objection to a notice system must be weighed against the four principal values of a copyright notice: (1) placing published material which no one desires to protect into the public domain at an early date: (2) showing whether a work is under copyright; (3) identifying the copyright owner; and (4) showing the year date of publication.

Proposed liberalízation.—H.R. 2223 attempts to balance these opposing interests. It would retain the copyright notice in principle but would greatly lessen the penalty for an error in compliance with the statute, by allowing mistakes to be corrected without loss of protection. Also, it would relax the exacting specifications for the form and position of the notice by requiring only that the notice be placed “in such manner and location as to give reasonable notice of claim of copyright."

Conclusion. In general, sections 401 through 406 represent an effort to preserve the values of the copyright notice by inducing its use, while substantially ameliorating the effects of accidental or even deliberate errors or omissions. Subject to certain safeguards for innocent infringers, protection would not be lost by the omission of notice from large numbers of copies or from a whole edition, if registration for the work is made before publication or within five years after publication.

Section 401: Notice on visually perceptible copies (Section 401)

General notice requirements.-Section 401 and 402 set out the basic notice requirements of the bill, the former dealing with "copies from which the work can be visually perceived," and the latter covering "phonorecords" of a "sound recording." The notice requirements established by these parallel provisions apply only when copies or phonorecords of the work are "publicly distributed." Form and position.-Subsection (b) of section 401, which sets out the form of notice to appear on visually perceptible copies, retains the basic elements of the notice under the present law: the word "Copyright," the abbreviation "Copr.," or the symbol "", the year of first publication, and the name of the copyright owner. By providing simply that the notice "shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright," subsection (c) follows the flexible approach of the Universal Copyright Convention.

Section 402: Notice on phonorecords of sound recordings

Special notice on phonorecords.-A special notice requirement, applicable only to sound recordings, is established by section 402. Since the bill would pro

tect sound recordings as separate works, independent of protection for any literary or musical works embodied in them, there could be some confusion if the same notice requirements applied to sound recordings and to works they incorporate. Section 402 thus sets forth notice requirements for "phonorecords" of "sound recordings" that are different from those set by section 401 for the "copies" of all other types of copyrightable works.

Form and position of phonorecord notice.-In general, the form of notice specified by section 402(b) consists of: the symbol "℗"; the year of first publication of the sound recording; and the name of the copyright owner or an admissible variant. Under subsection (c), the notice for a sound recording may be affixed to the surface, label, or contained of the phonorecord "in such manner and location as to give reasonable notice of the claim of copyright." The symbol "D" has also been adopted as the international symbol for the protection of sound recordings by the 1972 Geneva Convention for the Protection of Producers of Phonograms, to which the United States is party.

Section 403: Notice for publications incorporating United States Government works

Identification of Government works.-Section 403 would require a special notice for a publication that incorporates United States Government works. It provides that, when the copies or phonorecords consist "preponderantly of one or more works of the United States Government," the notice identify those parts of the work in which copyright is claimed, i.e., the "new matter" added to the uncopyrightable United States Government work. A failure to meet this requirement would be treated as an omission of the notice, subject to the provisions of section 405.

Section 404: Notice for contributions to collective works

Collective works.-In conjunction with section 201 (c), section 404 deals with a serious problem under the present law: the notice requirements applicable to contributions published in periodicals and other collective works. The basic approach of the section is to permit but not require a separate contribution to bear its own notice and to make a single notice, covering the collective work as a whole, sufficient to satisfy the notice requirement for the separate contribution it contains.

Effect of error in notice.-Under this section, the rights in an individual contribution to a collective work would not generally be affected by the lack of a separate notice, as long as the collective work as a whole bears a notice. However, under section 404 (b) a separate contribution that does not bear its own notice, and that is published in a collective work with a general notice containing the name of someone other than the copyright owner of the contribution, is treated as if it has been published with the wrong name in the notice.

Section 405: Omission of copyright notice

General provision.—The provisions of section 405(a) make clear that the notice requirements of sections 401, 402, and 403 are not absolute and that, unlike the present law, the outright omission of a copyright notice does not automatically forfeit protection and place the work into the public domain. Under the proposed law a work published without a notice will still be eligible for statutory protection for at least five years, whether the omission was partial or total, unintentional or deliberate.

Conditions for correcting error.-Section 405 (a) provides that omission of notice does not invalidate the copyright if either of two conditions is met: (1) if "no more than a relatively small number" of copies or phonorecords have been publicly distributed without notice; or (2) if registration for the work has previously been made, or is made within five years after the publication without notice, and a reasonable effort is made to add notice to copies or phonorecords publicly distributed in the United States after the omission is discovered.

Effect on innocent infringer.—In addition to the possibility that copyright protection will be forfeited under section 405 (a) (2) if the notice is omitted, a second major inducement to use of the notice is found in section 405 (b). It provides that an innocent infringer who acts "in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted," and who proves that he was misled by the omission, is protected from liability for actual or statutory damages with respect to "any infringing acts committed before receiving actual notice" of registration.

Section 406: Error with respect to name or date in notice

Wrong name.-Under section 406(a), the use of the wrong name in the notice would not affect the validity or ownership of the copyright. However, unless the error had been corrected in the records of the Copyright Office, an innocent infringer misled by the notice would have a complete defense if he infringed under the apparent authority of the person named in the notice.

Wrong date. The provisions of section 406(b) would preserve the validity of a copyright in the large majority of cases where an error has been made in the date given in the notice.

Omission of name or date.-Where the copies contain no name or date that could reasonably be considered part of the notice, section 406 (c) treats the work as if the entire notice had been omitted, as provided under section 405.

SECTIONS 407-412-DEPOSIT AND REGISTRATION REQUIREMENTS

General considerations

Sections 407 through 412 of the bill mark another departure from the present law, and they bring the United States closer in line with international practice. Under the current statute, deposit of copies for the collections of the Library of Congress and for purposes of copyright registration have been treated as the same thing. The bill's fundamental approach is to regard deposit and registration as separate though closely related requirements. Deposit of copies or phonorecords for the Library of Congress is mandatory. Copyright registration, as such, is not mandatory, but is a condition of certain remedies for copyright infringe

↓ ment. Deposit for the Library of Congress can be combined with copyright regis

tration so as to serve the same purpose.

Section 407: Deposit for the Library of Congress

The basic requirement of the deposit provision, section 407, is that within three months after a work has been published with notice in the United States, the owner of the copyright must deposit two copies or phonorecords of the work in the Copyright Office. Exceptions to this requirement can be made under regulations aimed at meeting the needs of the Library of Congress and adjusting the deposit obligations to meet special situations. Failure to deposit after written demand makes the copyright owner liable to a fine and to reimbursement of the Library for the cost of the copies.

Section 408: Copyright registration in general

Registration permissive.-Under section 408(a), registration of a claim to copyright in any work, whether published or unpublished, can be made voluntarily by "the owner of copyright or of any exclusive right in the work" at any time during the copyright term. The claim may be registered in the Copyright Office by depositing the copies, phonorecords, or other material specified by subsections (b) and (c), together with an application and fee.

Deposit for registration.—In general, and subject to various exceptions, the material to be deposited for copyright registration consists of one complete copy or phonorecord of an unpublished work, and two complete copies or phonorecords of the best edition of a published work. Under section 408(b), a single deposit would satisfy both the deposit and registration requirements for a domestic work, if it is made at the same time that the application and fee are filed.

Classification and deposit regulations.-Section 408 (c) allows the Register of Copyrights to specify "the administrative classes into which works are to be placed for purposes of deposit and registration." This subsection also gives the Register latitude in adjusting the type of material deposited to the needs of the registration system.

Section 409: Application for registration

Section 409, which lists the information to be included in an application for copyright registration, is intended to give the Register of Copyrights authority to elicit the information necessary to examine the application and to make a meaningful record of registration. This provision is similar to the current law except that it requests more extensive information about the work and the copyright claimant.

Section 410: Registration of claim and issuance of certificate

Basic registration authority.-Subsections (a) and (b) of section 410 set forth the two basic duties of the Register of Copyrights with respect to copyright

registration: (1) to register the claim and issue a certificate if he determines that "the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements . . . have been met," and (2) to refuse registration and notify the applicant if he determines that "the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason."

Prima facie effect.-The present law gives a certificate of registration status as prima facie evidence of the facts of a particular copyright. Section 410 (c) retains this provision, but accords the certificate automatic prima facie status only if registration is made within five years after first publication. Where registration occurs after that time, the probative value of the certificate will be subject to judicial discretion.

Section 411: Registration as prerequisite to infringement suit

Section 411(a) restates the present statutory requirement that registration must be made before a suit for copyright infringement is instituted. However, the new bill provides that a rejected claimant who has properly applied for registration may bring an infringement suit if he serves notice on the Register of Copyrights, thus allowing him to intervene in the suit. Section 411(b) deals with works that are being transmitted "live" at the same time they are being fixed in tangible form for the first time. Under certain circumstances, an infringement action could be maintained even before the work's fixation and registration. Section 412: Registration as prerequisite to certain remedies

Although the registration system under the new bill is not obligatory, section 412 offers a strong incentive to copyright owners to make registration voluntarily, by providing a broader range of remedies in cases of infringement of a registered work. It would deny any award of the special or “extraordinary" remedies of statutory damages or attorney's fees where infringement of an unpublished work began before registration or where, in the case of a published work, infringement commenced after publication and before registration. But, if the work is registered within three months of first publication, there is no loss of rights.

CHAPTER 6

MANUFACTURING REQUIREMENT AND IMPORTATION

Section 601: Manufacturing requirement

General background.--Past efforts to revise the copyright statute have been impeded by the need to reconcile the interests of the American printing industry with those of authors and other copyright owners. The "manufacturing clause," which came into the copyright law as a compromise in 1891, requires in general that certain works be manufactured in the United States to receive full copyright protection here. The scope and effect of the provision have been gradually narrowed by successive amendments, but in its present form the requirement has often been criticized as discriminatory against American authors and detrimental to our international copyright relations.

The essential question raised by this provision is whether, as a means of protecting the American printing industry against foreign competition, it is necessary or justified to require domestic manufacture as a condition of copyright in writings by American authors published in books and periodicals. This basic issue remains unsettled. As a result, section 601 is a compromise measure aimed at achieving a reasonable balance between the opposing interests: the printing industry, and authors and publishers. It makes a number of modifications that would further narrow the coverage of the manufacturing clause, and would extend the present limit on importation of copies manufactured abroad from 1,500 to 2,000.

Present manufacturing requirement. The present law requires, with a number of exceptions and qualifications, that English-language books and periodicals must be manufactured in the United States in order to be entitled to full-term copyright protection. At present, the main impact of this requirement falls on works by American authors, which in some cases fall into the public domain as a result of the failure to comply with the law's strict conditions. The Universal Copyright Convention presently exempts most foreign authors from the burden of the manufacturing clause.

Scope of requirement.-Section 601 would retain a manufacturing requirement, but with substantial revisions that would make its result less harsh. The scope