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during 1977. In none of these cases, however, would the total terms of copyright for the work be longer than 75 years.

Subsection (b) also covers the special situation of a subsisting first-term copyright that becomes eligible for renewal registration during the year before the act comes into effect. If a renewal registration is not made before the effective date (Jan. 1, 1978), the case is governed by the provisions of section 304(a) (subsec. (a) of this section). If a renewal registration is made during the year before the new law takes effect, how. ever, the copyright would be treated as if it were already subsisting in its second term and would be extended to the full period of 75 years without the need for further renewal.

Termination of Grants Covering Extended Term. An issue underlying the 19-year extension of renewal terms under both subsections (a) and (b) of section 304 (subsecs. (a) and (b) of this section) is whether, in a case where their rights have already been transferred, the author or the dependents of the author should be given a chance to benefit from the extended term. The arguments for granting rights of termination are even more persuasive under section 304 than they are under section 203; the extended term represents a completely new property right, and there are strong reasons for giving the author, who is the fundamental beneficiary of copyright under the Constitution, an opportunity to share in it.

Subsection (c) of section 304 is a close but not exact counterpart of section 203. In the case of either a firstterm or renewal copyright already subsisting when the new statute becomes effective (Jan. 1, 1978), any grant of rights covering the renewal copyright in the work, executed before the effective date (Jan. 1, 1978), may be terminated under conditions and limitations similar to those provided in section 203. Except for transfers and licenses covering renewal copyrights already extended under Public Laws 87-668, 89-142, 90-141, 90-416, 91-147, 91-555, 92-170, 92-566, and 93-573, which would become subject to termination immediately upon the coming into effect of the revised law, the 5-year period during which termination could be made effective would start 56 years after copyright was originally secured.

The bill distinguishes between the persons who can terminate a grant under section 203 and those entitled to terminate a grant covering an extended term under section 304. Instead of being limited to transfers and licenses executed by the author, the right of termination under section 304(c) also extends to grants executed by those beneficiaries of the author who can claim renewal under the present law: his or her widow or widower, children, executors, or next of kin.

There is good reason for this difference. Under section 203, an author's widow or widower and children are given rights of termination if the author is dead, but these rights apply only to grants by the author, and any effort by a widow, widower, or child to transfer contingent future interests under a termination would be ineffective. In contrast, under the present renewal provisions, any statutory beneficiary of the author can make a valid transfer or license of future renewal rights, which is completely binding if the author is dead and the person who executed the grant turns out to be the proper renewal claimant. Because of this, a great many contingent transfers of future renewal rights have been obtained from widows, widowers, children, and next of kin, and a substantial number of these will be binding. After the present 28year renewal period has ended, a statutory beneficiary who has signed a disadvantageous grant of this sort should have the opportunity to reclaim the extended term.

As explained above in connection with section 203, the bill adopts the principle that, where a transfer or license by the author is involved, termination may be effected by a per stirpes majority of those entitled to terminate, and this principle also applies to the ownership of rights under a termination and to the making

of further grants of reverted rights. In general, this principle has also been adopted with respect to the termination of rights under an extended renewal copy. right in section 304, but with several differences made necessary by the differences between the legal status of transfers and licenses made after the effective date of the new law (Jan. 1, 1978) (governed by section 203) and that of grants of renewal rights made earlier and governed by section 304(c). The following are the most important distinctions between the termination rights under the two sections:

1. Joint Authorship.-Under section 304, a grant of renewal rights executed by joint authors during the first term of copyright would be effective only as to those who were living at the time of renewal; where any of them are dead, their statutory beneficiaries are entitled to claim the renewal independently as a new estate. It would therefore be inappropriate to impose a requirement of majority action with respect to transfers executed by two or more joint authors.

2. Grants Not Executed by Author. Section 304(c) adopts the majority principle underlying the amendments of section 203 (section 203 of this title) with respect to the termination rights of a dead author's widow or widower and children. There is much less reason, as a matter of policy, to apply this principle in the case of transfers and licenses of renewal rights executed under the present law by the author's widow, widower, children, executors, or next of kin, and the practical arguments against doing so are conclusive. It is not clear how the shares of a class of renewal beneficiaries are to be divided under the existing law, and greater difficulties would be presented if any attempt were made to apply the majority principle to further beneficiaries in cases where one or more of the renewal beneficiaries are dead. Therefore, where the grant was executed by a person or persons other than the author, termination can be effected only by the unanimous action of the survivors of those who executed it.

3. Further Grants. The reason against adopting a principle of majority action with respect to the right to terminate grants by joint authors and grants not executed by the author apply equally with respect to the right to make further grants under section 304(c). The requirement for majority action in clause (6)(C) is therefore confined to cases where the rights under a grant by the author have reverted to his or her widow or widower, or children, or both. Where the extended term reverts to joint authors or to a class of renewal beneficiaries who have joined in executing a grant, their rights would be governed by the general rules of tenancy in common; each coowner would have an independent right to sell his share, or to use or license the work subject to an accounting.

Nothing contained in this section or elsewhere in this legislation is intended to extend the duration of any license, transfer, or assignment made for a period of less than fifty-six years. If, for example, an agreement provides an earlier termination date or lesser duration, or if it allows the author the right of cancelling or terminating the agreement under certain circumstances, the duration is governed by the agreement. Likewise, nothing in this section or legislation is intended to change the existing state of the law of contracts concerning the circumstances in which an author may terminate a license, transfer or assignment.

Section 304(c)(6)(E) provides that, unless and until termination is effected under this section, the grant, “if it does not provide otherwise,” continues for the term of copyright. This section means that, if the agreement does not contain provisions specifying its term or duration, and the author has not terminated the agreement under this section, the agreement continues for the term of the copyright, subject to any right of termination under circumstances which may be specified therein. If, however, an agreement does contain provisions governing its duration-for example, a term of sixty years and the author has not exercised his or her right of termination under the statute, the agreement will continue according to its terms—in this example, for only sixty years. The quoted language is not to be construed as requiring agreements to reserve the right of termination.

EFFECTIVE DATE Subsec. (b) of this section effective Oct. 19, 1976, see section 102 of Pub. L. 94-553, set out as a note preceding section 101 of this title. AD INTERIM COPYRIGHTS SUBSISTING OR CAPABLE OF

BEING SECURED UNDER PREDECESSOR PROVISIONS Section 107 of Pub. L. 94-553 provided that: “In the case of any work in which an ad interim copyright is subsisting or is capable of being secured on December 31, 1977, under section 22 of title 17 as it existed on that date, copyright protection is hereby extended to endure for the term or terms provided by section 304 of title 17 as amended by the first section of this Act (this section)." COPYRIGHT GRANTED TO “SCIENCE AND HEALTH WITH

KEY TO THE SCRIPTURES" POR TERM OF 75 YEARS Private Law 92-60, Dec. 15, 1971, 85 Stat. 857, provided: “That, any provision of law to the contrary notwithstanding, copyright is hereby granted to the trustees under the will of Mary Baker Eddy, their successors, and assigns, in the work 'Science and Health with Key to the Scriptures' (entitled also in some editions Science and Health' or 'Science and Health; with a Key to the Scriptures'), by Mary Baker Eddy, includ. ing all editions thereof in English and translation heretofore published, or hereafter published by or on behalf of said trustees, their successors or assigns, for a term of seventy-five years from the effective date of this Act (Dec. 15, 1971) or from the date of first publication, whichever is later. All copies of the protected work hereafter published are to bear notice of copy. right, and all new editions hereafter published are to be registered in the Copyright Office, in accordance with the provisions of title 17 of the United States Code or any revision or recodification thereof. The copyright owner shall be entitled to all rights and remedies provided to copyright owners generally by law. Provided, however, That no liability shall attach under this Act for lawful uses made or acts done prior to the effective date of this Act in connection with said work, or in respect to the continuance for one year subsequent to such date of any business undertaking or enterprise lawfully undertaken prior to such date involving expenditure or contractual obligation in connection with the exploitation, production, reproduction or circulation of said work. This Act shall be effective upon enactment.”

EXTENSION OF RENEWAL TERMS UNDER PRIOR LAW Pub. L. 93-573, title I, $ 104, Dec. 31, 1974, 88 Stat. 1873, provided that in any case in which the renewal term of a copyright subsisting in any work on Dec. 31, 1974, or the term thereof as extended by Public Law 87-668, by Public Law 89-142, by Public Law 90-141, by Public Law 90-416, by Public Law 91-417, by Public Law 91-555, by Public Law 92-170, or by Public Law 92-556 (or by all or certain of said laws) (set out below), would expire prior to Dec. 31, 1976, such term was continued until Dec. 31, 1976.

Pub. L. 92-566, Oct. 25, 1972, 86 Stat. 1181, provided that in any case in which the renewal term of a copyright subsisting in any work on Oct. 25, 1972, or the term thereof as extended by Public Law 87-668, by Public Law 89-142, by Public Law 90-141, by Public Law 90-416, by Public Law 91-147, by Public Law 91-555, or by Public Law 92-170 (or by all or certain of said laws) (set out below), would expire prior to Dec. 31, 1974, such term was continued until Dec. 31, 1974.

Pub. L. 92-170, Nov. 24, 1971, 85 Stat. 490, provided that in any case in which the renewal term of a copy. right subsisting in any work on Nov. 24, 1971, or the term thereof as extended by Public Law 87-668, by Public Law 89-142, by Public Law 90-141, by Public Law 90-416, by Public Law 91-147, or by Public Law 91-555 (or by all or certain of said laws), would expire prior to Dec. 31, 1972, such term was continued until Dec. 31, 1972.

Pub. L. 91-555, Dec. 17, 1970, 84 Stat. 1441, provided that in any case in which the renewal term of a copy. right subsisting in any work on Dec. 17, 1970, or the term thereof as extended by Public Law 87-668, by Public Law 89-442 (89-142], by Public Law 90-141, by Public Law 90-416, or by Public Law 91-147 (or by all or certain of said laws) (set out below], would expire prior to Dec. 31, 1971, such term was continued until Dec. 31, 1971.

Pub. L. 91-147, Dec. 16, 1969, 83 Stat. 360, provided that in any case in which the renewal term of a copyright subsisting in any work on Dec. 16, 1969, or the term thereof as extended by Public Law 87-668, by Public Law 89-142, by Public Law 90-141, or by Public Law 90-416 (or by all or certain of said laws) (set out below), would expire prior to Dec. 31, 1970, such term was continued until Dec. 31, 1970.

Pub. L. 90-416, July 23, 1968, 82 Stat. 397, provided that in any case in which the renewal term of a copy. right subsisting in any work on July 23, 1968, or the term thereof as extended by Public Law 87-668, by Public Law 89-142, or by Public Law 90-141 (or by all or certain of said laws) (set out below), would expire prior to Dec. 31, 1969, such term was continued until Dec. 31, 1969.

Pub. L. 90-141, Nov. 16, 1967, 81 Stat. 464, provided that in any case in which the renewal term of a copy. right subsisting in any work on Nov. 16, 1967, or the term thereof as extended by Public Law 87-668, or by Public Law 89-142 (or by either or both of said laws) (set out below), would expire prior to Dec. 31, 1968, such term was continued until Dec. 31, 1968.

Pub. L. 89-142, Aug. 28, 1965, 79 Stat. 581, provided that in any case in which the renewal term of a copyright subsisting in any work on Aug. 28, 1965, or the term thereof as extended by Public Law 87-668 (set out below), would expire prior to Dec. 31, 1967, such term was continued until Dec. 31, 1967.

Pub. L. 87-668, Sept. 19, 1962, 76 Stat. 555, provided that in any case in which the renewal term of a copy. right subsisting in any work on Sept. 19, 1962, would expire prior to Dec. 31, 1965, such term was continued until Dec. 31, 1965.

CROSS REFERENCES Alternative to separate renewal registrations for group works by single author, see section 408 of this title.

Duration and renewal of registration of trade-marks, see sections 1058 and 1059 of Title 15, Commerce and Trade.

Duration of term of patents, see section 154 of Title 35, Patents.

Fee for registration of claim to renewal of subsisting copyright in first term, see section 708 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 305, 408, 708 of this title.

8 305. Duration of copyright: Terminal date

All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2576.)

HISTORICAL AND REVISION NOTES

Sec.

410. Registration of claim and issuance of certifiHOUSE REPORT NO. 94-1476

cate.

411. Under section 305, which has its counterpart in the

Registration and infringement actions. laws of most foreign countries, the term of copyright

412. Registration as prerequisite to certain remeprotection for a work extends through December 31 of

dies for infringement. the year in which the term would otherwise have expired. This will make the duration of copyright much

AMENDMENTS easier to compute, since it will be enough to determine the year, rather than the exact date, of the event

1988–Pub. L. 100-568, $$ 7(g), 9(b)(2), Oct. 31, 1988, from which the term is based.

102 Stat. 2859, inserted in items 405 and 406 "on cerSection 305 applies only to "terms of copyright pro

tain copies and phonorecords” and substituted in item vided by sections 302 through 304," which are the sec

411 "Registration and infringement actions" for "Regtions dealing with duration of copyright. It therefore

istration as prerequisite to infringement suit”. has no effect on the other time periods specified in the bill; and, since they do not involve "terms of copy

CHAPTER REFERRED TO IN OTHER SECTIONS right," the periods provided in section 304(c) with re

This chapter is referred to in section 912 of this title. spect to termination of grants are not affected by section 305. The terminal date section would change the dura

8 401. Notice of copyright: Visually perceptible copies tion of subsisting copyrights under section 304 by ex

(a) GENERAL PROVISIONS.-Whenever a work tending the total terms of protection under subsections (a) and (b) to the end of the 75th year from the

protected under this title is published in the date copyright was secured. A copyright subsisting in

United States or elsewhere by authority of the its first term on the effective date of the act (Jan. 1. copyright owner, a notice of copyright as pro1978] would run through December 31 of the 28th vided by this section may be placed on publicly year and would then expire unless renewed. Since all

distributed copies from which the work can be copyright terms under the bill expire on December 31,

visually perceived, either directly or with the and since section 304(a) requires that renewal be made

aid of a machine or device. "within one year prior to the expiration of the original term of copyright,” the period for renewal registration

(b) FORM OF NOTICE.-If a notice appears on in all cases will run from December 31 through De

the copies, it shall consist of the following cember 31.

three elements: A special situation arises with respect to subsisting (1) the symbol © (the letter C in a circle), copyrights whose first 28-year term expires during the

or the word “Copyright”, or the abbreviation first year after the act comes into effect. As already explained in connection with section 304(b), if a re

"Copr."; and newal registration for a copyright of this sort is made

(2) the year of first publication of the work; before the effective date [Jan. 1, 1978), the total term in the case of compilations, or derivative is extended to 75 years without the need for a further works incorporating previously published marenewal registration. But, if renewal has not yet been terial, the year date of first publication of the made when the act becomes effective (Jan. 1, 1978),

compilation or derivative work is sufficient. the period for renewal registration may in some cases

The year date may be omitted where a pictobe extended. If, as the bill provides, the act becomes

rial, graphic, or sculptural work, with accomeffective on January 1, 1978, a copyright that was originally secured on September 1, 1950, could have

panying text matter, if any, is reproduced in been renewed by virtue of the present statute between

or on greeting cards, postcards, stationery, September 1, 1977, and December 31, 1977; if not, it jewelry, dolls, toys, or any useful articles; and can still be renewed under section 304(a) of the new (3) the name of the owner of copyright in act between January 1, 1978, and December 31, 1978. the work, or an abbreviation by which the

name can be recognized, or a generally known CROSS REFERENCES

alternative designation of the owner. Duration and renewal of registration of trade-marks, see sections 1058 and 1059 of Title 15, Commerce and

(c) POSITION OF NOTICE.—The notice shall be Trade.

affixed to the copies in such manner and locaDuration of term of patents, see section 154 of Title tion as to give reasonable notice of the claim of 35, Patents.

copyright. The Register of Copyrights shall

prescribe by regulation, as examples, specific CHAPTER 4-COPYRIGHT NOTICE, DEPOSIT, methods of affixation and positions of the AND REGISTRATION

notice on various types of works that will satis

fy this requirement, but these specifications Sec.

shall not be considered exhaustive. 401. Notice of copyright: Visually perceptible copies.

(d) EVIDENTIARY WEIGHT OF NOTICE.—If a 402. Notice of copyright: Phonorecords of sound notice of copyright in the form and position recordings.

specified by this section appears on the pub403. Notice of copyright: Publications incorporat- lished copy or copies to which a defe dant in a ing United States Government works.

copyright infringement suit had access, then no 404. Notice of copyright: Contributions to collec

weight shall be given to such a defendant's intive works. 405. Notice of copyright: Omission of notice on

terposition of a defense based on innocent incertain copies and phonorecords.

fringement in mitigation of actual or statutory 406. Notice of copyright: Error in name or date

damages, except as provided in the last senon certain copies and phonorecords.

tence of section 504(c)(2). 407. Deposit of copies or phonorecords for Library of Congress.

(Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 408. Copyright registration in general.

Stat. 2576; Pub. L. 100-568, $ 7(a), Oct. 31, 1988, 409. Application for copyright registration.

102 Stat. 2857.)

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476 A requirement that the public be given formal notice of every work in which copyright is claimed was a part of the first U.S. copyright statute enacted in 1790, and since 1802 our copyright laws have always provided that the published copies of copyrighted works must bear a specified notice as a condition of protection. Under the present law the copyright notice serves four principal functions:

(1) It has the effect of placing in the public domain a substantial body of published material that no one is interested in copyrighting;

(2) It informs the public as to whether a particular work is copyrighted;

(3) It identifies the copyright owner; and

(4) It shows the date of publication. Ranged against these values of a notice requirement are its burdens and unfairness to copyright owners. One of the strongest arguments for revision of the present statute has been the need to avoid the arbitrary and unjust forfeitures now resulting from unin. tentional or relatively unimportant omissions or errors in the copyright notice. It has been contended that the disadvantages of the notice requirement outweigh its values and that it should therefore be eliminated or substantially liberalized.

The fundamental principle underlying the notice provisions of the bill is that the copyright notice has real values which should be preserved, and that this should be done by inducing use of notice without causing outright forfeiture for errors or omissions. Subject to certain safeguards for innocent infringers, protection would not be lost by the complete omission of copyright notice from large numbers of copies or from a whole edition, if registration for the work is made before or within 5 years after publication. Errors in the name or date in the notice could be corrected without forfeiture of copyright.

Sections 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." No copyright notice would be required in connection with the public display of a copy by any means, including projectors, television, or cathode ray tubes connected with information storage and retrieval systems, or in connection with the public performance of a work by means of copies or phonorecords, whether in the presence of an audience or through television, radio, computer transmission, or any other process.

It should be noted that, under the definition of "publication" in section 101, there would no longer be any basis for holding, as a few court decisions have done in the past, that the public display of a work of art under some conditions (e.g., without restriction against its reproduction) would constitute publication of the work. And, as indicated above, the public display of a work of art would not require that a copyright notice be placed on the copy displayed.

Subsections (a) of both section 401 and section 402 require that a notice be used whenever the work "is published in the United States or elsewhere by authority of the copyright owner." The phrase "or elsewhere,” which does not appear in the present law, makes the notice requirements applicable to copies or phonorecords distributed to the public anywhere in the world, regardless of where and when the work was first published. The values of notice are fully applicable to foreign editions of works copyrighted in the United States, especially with the increased flow of intellectual materials across national boundaries, and the gains in the use of notice on editions published abroad under the Universal Copyright Convention should not be wiped out. The consequences of omissions or mistakes with respect to the notice are far less

serious under the bill than under the present law, and section 405(a) makes doubly clear that a copyright owner may guard himself against errors or omissions by others if he makes use of the prescribed notice an express condition of his publishing licenses.

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. The year of publication, which is still significant in computing the term and determining the status of a work, is required for all categories of copyrightable works. Clause (2) of subsection (b) makes clear that, in the case of a derivative work or compilation, it is not necessary to list the dates of publication of all preexisting material incorporated in the work; however, as noted below in connection with section 409, the application for registration covering a compilation or derivative work must identify “any preexisting work or works that it is based on or incorporates." Clause (3) establishes that a recognizable abbreviation or a generally known alternative designation may be used instead of the full 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. The further provision empowering the Register of Copyrights to set forth in regulations a list of examples of "specific methods of affix. ation and positions of the notice on various types of works that will satisfy this requirement” will offer substantial guidance and avoid a good deal of uncertainty. A notice placed or affixed in accordance with the regulations would clearly meet the requirements but, since the Register's specifications are not to "be considered exhaustive," a notice placed or affixed in some other way might also comply with the law if it were found to "give reasonable notice" of the copyright claim.

AMENDMENTS

1988–Subsec. (a). Pub. L. 100-568, 8 7(a)(1), (2), substituted "General provisions" for "General requirement" in heading, and "may be placed on” for “shall be placed on all” in text.

Subsec. (b), Pub. L. 100-568, 7(a)(3), substituted "If a notice appears on the copies, it" for "The notice appearing on the copies".

Subsec. (d). Pub. L. 100-568, $ 7(a)(4), added subsec. (d).

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100-568, set out as a note under section 101 of this title.

COMPLIANCE WITH PREDECESSOR NOTICE PROVISIONS;

COPIES DISTRIBUTED AFTER DEC. 31, 1977 Section 108 of Pub. L. 94-553 provided that: “The notice provisions of sections 401 through 403 of title 17 as amended by the first section of this Act (sections 401 through 403 of this title) apply to all copies or phonorecords publicly distributed on or after January 1, 1978. However, in the case of a work published before January 1, 1978, compliance with the notice provisions of title 17 either as it existed on December 31, 1977, or as amended by the first section of this Act, is adequate with respect to copies publicly distributed after December 31, 1977."

95-007 O - 89 - 5 (Vol. 7). QL3

HISTORICAL AND REVISION NOTES

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 403 to 405 of this title.

HOUSE REPORT NO. 94-1476

8 402. Notice of copyright: Phonorecords of sound re

cordings (a) GENERAL PROVISIONS.-Whenever a sound recording protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed phonorecords of the sound recording.

(b) FORM OF NOTICE.—If a notice appears on the phonorecords, it shall consist of the following three elements:

(1) the symbol(P (the letter P in a circle); and

(2) the year of first publication of the sound recording; and

(3) the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner; if the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice.

(c) POSITION OF NOTICE.-The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright.

(d) EVIDENTIARY WEIGHT OF NOTICE.-If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2). (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2577; Pub. L. 100-568, $ 7(b), Oct. 31, 1988, 102 Stat. 2857.)

A special notice requirement, applicable only to the subject matter of sound recordings, is established by section 402. Since the bill protects sound recordings as separate works, independent of protection for any literary or musical works embodied in them, there would be a likelihood of confusion if the same notice requirements applied to sound recordings and to the works they incorporate. Like the present law, therefore, section 402 thus sets forth requirements for a notice to appear on the "phonorecords” of “sound recordings" that are different from the notice requirements established by section 401 for the "copies” of all other types of copyrightable works. Since “phonorecords” are not "copies," there is no need to place a section 401 notice on “phonorecords” to protect the literary or musical works embodied in the records.

In general, the form of the 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. Where the record producer's name appears on the record label, album, sleeve, jacket, or other container, it will be considered a part of the notice if no other name appears in conjunction with it. Under subsection (c), the notice for a copyrighted sound recording may be affixed to the surface, label, or container of the phonorecord "in such manner and location as to give reasonable notice of the claim of copyright."

There are at least three reasons for prescribing use of the symbol '' rather than “©” in the notice to appear on phonorecords of sound recordings. Aside from the need to avoid confusion between claims to copyright in the sound recording and in the musical or literary work embodied in it, there is also a necessity for distinguishing between copyright claims in the sound recording and in the printed text or art work appearing on the record label, album cover, liner notes, et cetera. The symbol “©" has also been adopted as the international symbol for the protection of sound recordings by the “Phonograms Convention" (the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, done at Geneva October 29, 1971), to which the United States is a party.

AMENDMENTS 1988–Subsec. (a). Pub. L. 100-568, $ 7(b)(1), (2), substituted "General provisions” for "General requirement" in heading, and “may be placed on” for “shall be placed on all" in text.

Subsec. (b). Pub. L. 100-568, $ 7(b)(3), substituted “If a notice appears on the phonorecords, it” for “The notice appearing on the phonorecords".

Subsec. (d). Pub. L. 100-568, § 7(b)(4), added subsec. (d).

8 403. Notice of copyright: Publications incorporating

United States Government works Sections 401(d) and 402(d) shall not apply to a work published in copies or phonorecords consisting predominantly of one or more works of the United States Government unless the notice of copyright appearing on the published copies or phonorecords to which a defendant in the copyright infringement suit had access includes a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2577; Pub. L. 100-568, $ 7(c), Oct. 31, 1988, 102 Stat. 2858.)

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100-568, set out as a note under section 101 of this title.

Section 403 is aimed at a publishing practice that, while technically justified under the present law, has been the object of considerable criticism. In cases where a Government work is published or republished commercially, it has frequently been the practice to add some "new matter" in the form of an introduction, editing, illustrations, etc., and to include a general copyright notice in the name of the commercial

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 403 to 405 of this title.

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