Jane's Tables

Study 7 · comments

Tannenbaum

1958

Text:

Samuel Tannenbaum

With respect to the position of the notice, the same language used in the above subd. 1, of the Universal Copyright Convention, should be a satisfactory amendment to the U.S. copyright law, to wit, that a notice be inserted "in such manner and location as to give reasonable notice of claim of copyright". Aside from the advantages relating to the substantive copyright law, from the practical view point the advisability of continuing the use of the notice of copyright in one form or another, is evident by reason of the following: 

1. In most cases, the statutory notice affords notice to the public as to whether or not the author has elected to claim the benefits of statutory copyright protection. 

2. It facilitates the determination as to whether the copyright of the work has been renewed or not. It would also indicate whether the copyright had expired, if more than 56 years had elapsed. 

3. It would expedite the time consumed in the search required for determining the existence, validity and ownership of the copyright, rights thereunder, and uses of the work involved.

Study 7 · comments

Brown

1958

Text:

Ralph S. Brown

The careful marshaling in the Copyright Office study of the arguments for and against any requirement of notice as a condition for protection leaves me with a conviction that mandatory notice should be retained for published works. Even if we are out of step with most of the rest of the world, the notice requirement does not preclude international cooperation, as exemplified by the UCC. The historic conception of copyright in this country as a legal monopoly seems to require that some assertion should be made by those who wish to have the advantage of the monopoly. Notice seems best adapted for this purpose, since it is easy for the author to accomplish, and directly warns the would-be copier that a claim of copyright is made with respect to the work. 

With respect to an infringer who is misled by the accidental omission of a notice from some copies, or by its unauthorized omission by a licensee or another infringer, there seems to be considerable merit in giving him immunity from all remedies except an injunction. In this connection, he should have some protection for an undertaking innocently begun. The language of section 8 of the proposed Designs of Useful Articles bill seems well adapted for this purpose. 

Many of the objections to notice would be lessened if the technicalities could be diminished. It seems clear that the present statute and the older cases have been quite unnecessarily rigorous. So long as the essentials of a claim of copyright, by any appropriate word or symbol, the date, and some identification of the author are included, there should be no insistence on an exact formula. As for the position of a notice, the provision of the UCC placed in such manner and location as to give reasonable notice"-should be a sufficient statutory guide. I suppose some explicit statutory provision for curing postdated notices would be necessary to overcome the decisions that invalidate copyrights the date of which is later than the actual date of publication. I should have thought that a requirement of notice on the foreign editions of works first published abroad was burdensome (considering its inconsistence with foreign practice), and that the absence of such notice should not preclude the obtaining of an American copyright. In other words, I am (though on very imperfect information) in sympathy with the majority position in Heim v . Harris. However, since the UCC apparently looks in a different direction it seems appropriate for our domestic law to accent its requirement of notice on works published abroad.

Study 7 · comments

Derenberg

1958

Text:

Comment by By Walter J. Derenberg MARCH 21, 1958 

Since this admirable study gives the complete historical and legislative background of the present notice provisions and also offers an enlightening survey of the respective provisions in the laws of foreign countries, it will not be necessary here to do more than briefly indicate my personal views with regard to the issues summarized at page 48 of the study.

It has always been my belief that the present notice provisions of the Act of 1909 are an anachronism and have resulted in innumerable instances in the loss of copyright on highly technical grounds. 

This, in my opinion, has always been a most undesirable situation but has become almost intolerable since ratification by the United States of the Universal Copyright Convention. While the new Convention notice, © may now be used by U.S. authors and authors of works first published here on any type of work, as provided by Public Law 743, it still remains true that with regard to all other notice requirements concerning such works the notice provisions of the Act of 1909 continue to apply. In other words, a U.S. author may still not put the © at any place where it can be "reasonably seen" as provided in article IlLl of the Universal Convention, but must continue to comply with the rigid requirements of sections 18 and 19 of the Act of 1909. This result followed from our policy in seeking enactment of Public Law 743 not to go beyond the minimum changes which were required in our domestic law for the purpose of enabling the United States to ratify the Convention. In my opinion, any complete revision of the Copyright Act of 1909 should certainly eliminate all existing notice requirements for works first published here which would go beyond the requirements of article IIL1 of the Universal Convention. In other words, if any notice requirements at all were retained, it should suffice for any kind of copyrighted work if the symbol © accompanied by the name of the copyright proprietor and the year of first publication were placed "in such manner and location as to give reasonable notice of claim of copyright." I, however, would readily endorse any legislative proposal which would not even go as far as the Universal Convention but which would approach the philosophy underlying the Berne Convention and the laws of the vast majority of foreign countries, to the effect that no copyright notice whatever should be required as a condition to the securing of copyright protection. In other words, I would favor a provision such as was included in the Shotwell bill of 1940, S. 3043, which provided that copyright was to be extended "without compliance with any conditions or formalities.' 

Register's 1961 Report

7/10/61

Text:

Register’s 1961 Report (House Judiciary Committee Print (7/10/61 [Issued]) 

B. Arguments For and Against the Notice Requirement

c. Identifying the copyright owner

The notice indicates who is the copyright owner at the time of publication. In foreign countries where no notice is required, the laws commonly provide that if the author is identified in the copies of the work, he is presumed to own the copyright; otherwise the publisher named in the copies is presumed to be the copyright owner. In a substantial number of instances, however, the notice required by our law shows that the copyright owner is someone other than the person to whom such a presumption would apply. 

2. Objections to the Notice Requirement

The elimination of the notice requirement would mean that everything potentially copyrightable is under copyright protection. With some exceptions for particular kinds and uses of works, this is the state of the law in most foreign countries. Advocates of eliminating our notice provision argue that, as a matter of principle, all authors are entitled to have copyright in all their works without any requirement that they assert their desire for copyright protection. They urge that it is unjust to deprive an author of copyright because of his failure to comply with a technical notice requirement.

( 3 ) Application of formal requirements to foreign works.-The protection of foreign works by virtue of a proclamation, like the protection of domestic works, depends upon compliance with the general requirements of our statute for securing or maintaining copyright. These include the requirements of a copyright notice on published copies, the deposit of copies for registration of the copyright claim, and the manufacture of copies of certain works in the United States.

Aside from the copyright notice, these requirements impose a much greater practical burden on foreign authors than on domestic authors. As noted below, these formal requirements are mainly eliminated for foreign works protected under thc Universal Copyright Convention if they are published with a prescribed notice. And apparently the same result was contemplated under the Buenos Aires Convention.

. . .

(2) The Universal Copyright Convention.-The underlying principle of the Universal Copyright Convention is "national treatment each country is to protect the works originating in other member countries on the same basis as it protects the works of its own nationals. In addition, the UCC specifies certain minimum standards of protection. Section 9(c) was added to our statute in 1954 (effective in 1955) to make it conform with the terms of the Convention.

Section 9(c) extends the statute to the works of authors who are citizens or subjects of a foreign country that is a party to the UCC, and also to the works of any foreign author first published in a Convention country. It also provides that if the published copies of a foreign work eligible for protection under the UCC bear a prescribed copyright notice, the work is exempt from-

(a)The general requirement of deposit and registration (except as a prerequisite to suit) ;

(b) The requirement of domestic manufacture for certain works;

(c) The importation limit of 1,500 copies for certain works; and

(d) The requirement of a special proclamation for the extension of mechanical recording rights to foreign musical works.

(3) The Buenos Aires Convention.-The Buenos Aires Convention provides for copyright protection among the adhering American republics on the general basis of "national treatment" in each country for the works of the citizens or domiciliaries of the other countries. Although it is not clear on this and other points, the Convention ap- pears to apply only to works published in one of the member countries.

There are no provisions in our statute implementing or referring specifically to the Buenos Aires Convention. It was declared to be in effect, however, by a presidential proclamation. The Convention appears to contemplate that, under certain conditions, a work of another member country would be entitled to protection in the United States without compliance with some of the formal requirements of our statute

As of the date of this report, 7 of the 16 Latin American members of the Buenos Aires Convention have also adhered to the Universal Copy- right Convention, and others will undoubtedly join. Until all 16 have done so, however, our copyright relations with some of the Latin American countries will continue to be governed by the Buenos Aires Convention. 

There remain the countries that do not belong to either the Universal or Buenos Aires Conventions 15 "proclaimed" countries and 40 or more countries with which we have no copyright relations. It is here that we may find an opportunity to simplify the protection of foreign works and to improve our international copyright relations. 

Panel Discussion & Comments (Part 2)

2/15/63

Text:

Panel Discussion and Comments on 1961 Report (Part 2) (2/15/63 [Issued]) 

Panel Discussion & Comments (Part 2)

Karp

2/15/63

Text:

Mr. Karp: Mr. Kaminstein, I think that perhaps Mr. Tannenbaum’s question relates more to the basic problem of just how useful a purpose the notice provision serves in the whole area of enabling the would-be copyist to decide whether it is now safe for him to copy the work (or the would-be "user"-I don't mean the term derogatorily). And I think that there are so many instances in which notice serves no practical means of determining whether a work is or isn't in copyright that it might be wise to consider once again the thinking of some of us who, as Mr. Schulman mentioned, believe that notice should not be a requirement for copyright. 

In addition to that circumstance that Mr. Tannenbaum mentions- where you have a work that may have actually been in copyright for 20 years. and is just published, and bears a publication date 20 years after the time that the term of copyright began to run, anyone who re- lied only on the notice would have been misinformed by 20 years- you have the circumstance of a book published in Europe. (And I assume that you're not going to require that works published abroad must bear U:S. copyright if they are circulated abroad. Am I right or wrong about that? I wasn't quite clear on that in the report.) What happens, if this proposal is enacted, in the case of a book published in Europe? As it is now, it would not require a copyright notice here, would it? 

Mr. Kaminstein: Yes, it would. And the UCC does provide for requiring a notice now.

Mr. KARP. If it's not circulated in the United States?

Mr. Kaminstein: In other words, this was intended to overrule the Hein doctrine. (p. 114)

Panel Discussion & Comments (Part 2)

Kaminstein

2/15/63

Text:

Mr. KAMINSTEIN. Incidentally, I am not sure that you understood the purport of our recommendations in that case. We don't propose to treat these other countries as though they had joined the UCC. They would still have to meet all the requirements of our own statute.

Mr. KAMINSTEIN. I think this is a perfectly valid argument. And it is a question of judgment as to which carrot is going to be more attractive. Mr.Olsson did you want to-

Panel Discussion & Comments (Part 2)

Pilpel

2/15/63

Mrs. Pilpel: Now I am aware that any simple-sounding proposal would, when submitted to any group--and particularly this group-pretty soon become at least as complicated as the Copyright Office report. But, bearing that in mind, I would nonetheless like to make the following 

suggestion. I don't see why there could not be the simple copyright notice as stated in the UCC-both in terms of wording and in terms of location. 

…

Panel Discussion & Comments (Part 2)

Schulman

2/15/63

Mr. Schulman: But not today. But let me point this out. What is there, in our own situation, which differentiates us from the whole world? Here we have a report in the Times last Sunday that in Great Britain there were published approximately twice the number of books that we've published in the United States last year. Well, they are people who believe in copyright, and they have the same problems as we have in this country about the use of works by scholars and others. Yet there is no requirement in England, or any of the Commonwealth countries, for a notice, and there is no dedication of a work to the public for failure to inscribe a notice. 

Here we have the whole Common Market area, of which we hear a great deal, comprising a population of about 270 million people, an area larger than ours-a flourishing motion picture industry, a flourishing publishing industry, in France, and Italy, and the Scandinavian countries. And yet they get along without notice, and nobody has ever yet failed to find an author or a publisher of a work. (p. 126)

Mr. Schulman: We might under such circumstances relax the notice requirement only to the point of permitting a notice to be placed as provided in the Universal Copyright Convention.

Panel Discussion & Comments (Part 2)

Dubin

2/15/63

Mr. Dubin. In the earlier part of the discussion, when we were discussing the question of notice, John pointed out some of the situations that exist in some of the Central and South American countries. Now there they've combined a double standard both as to notice, deposit, and registration. Certain acts are required to be accomplished within a certain period of time. Then there's continued protection. In other words, neither deposit, nor notice, nor registration is a condition of obtaining protection in the first instance. It is a condition in order to maintain protection. And your judicial rights are suspended until such time as you do comply. 

They give you a certain period of time. In some of the countries you have a year within which to provide for deposit and registration. In other countries you have a notice, not as a prerequisite, but in order to maintain protection. Now if, within the period of 5, 10, 15, or 20 years-as the case may be, depending upon the laws of the particular jurisdiction-you fail to comply with the formalities, then you lose protection. But at least your rights are there; they are merely suspended until you do comply. I think that's what you had in mind this morning, did you not John? . . .

Panel Discussion & Comments (Part 2)

Sargoy

2/15/63

Mr. Sargoy: One of the reasons strongly beguiled by you, as Barbara indicated, was to encourage adherences by these other nations to the UCC. Now, UCC works are presently exempt, as you pointed out, from deposit and registration (save only as a condition precedent to suit), from the manufacturing requirements, from import limitations on works enjoying ad interim protection, and from the requirement of a special proclamation for extension of mechanical recordings to foreign musical works. But, under your proposals for a new act, most of these things would disappear except only (this is for the nonnational getting protection in the United States) for the possibility of deposit being a condition of copyright-which, I think, is not too likely. There may be penalties for failing to make a deposit, but not as a condition of copyright.

Mr. SARGOY. That's right, but you are eliminating many of the U.S. requirements that now make it advantageous to join the UCC. Under your proposed law, there'd be really no incentives left for joining the UCC-under the new type of law that you are proposing. I merely toss in for consideration that, to encourage countries getting into the UCC, some provisions might possibly be made as to these non-UCC nationals-as to whether their works should be protected only if they will, say, register them in the Copyright Office in the United States-and then only as to infringements committed after registration. 

Panel Discussion & Comments (Part 2)

Olsson

2/15/63

Mr. OLSSON. No, I didn't raise my hand, Kami. However, I have previously expressed myself in writing pretty much in accord with the views of those who have just spoken.

Panel Discussion & Comments (Part 2)

Finkelstein

2/15/63

Mr. FINKELSTEIN. I can see some merit in the Register's proposal that foreign authors not be deprived of copyright in the United States because of what their own Government is doing in their own country with respect to American works. I can see this advantage- that, if the time comes when we have a treaty with a foreign country, the treaty could be made effective as to some works that had been written or published in the past.

I wonder if we could have some departure from the present provision and say instead of copyright being denied to these authors that remedies be denied for the time being-so that, if we enter into a subsequent treaty with our respective countries, at that time there would be a larger body of works to be protected. But, in the meantime, those works would not be subject to any remedies in the United States.

It would seem to me that that might have some merit to it. Deny remedies in the meantime, but make the works available from now on for copyright protection and whatever remedies the subsequent treaty would provide.

Mr. KAMINSTEIN This sounds a little complicated, but I think some simplification would be worth considering here.  (pp. 191-192)

. . .

Panel Discussion & Comments (Part 2)

Authors' League

2/15/63

Authors’ League of America: At common law the author has the exclusive rights to publish, copy, perform, and otherwise present his work to the public, and to prevent anyone else from doing so-after, as well as before, it has been disseminated by performance, broadcast, or other means. Notice of copyright, registration, and other formalities are not required. And these common law rights are exclusively the author's--they are not subject to any limitations or exceptions (as they are under the statute) ; the author does not surrender rights to others so they can present his work publicly for their benefit (not his) ;he is not compelled to license rights at fixed rates. These rights are "immune from limitations on the scope of statutory protection" 

. . .

(a) We believe that notice of copyright should not be required if the system of "life plus 50 years" were adopted. It has never been required for copyright protection in most other countries. It is not required at common law. 

Panel Discussion & Comments (Part 2)

Brown

2/15/63

Ralph S. Brown: The report also maintains the firm foundation of our system that statutory copyright is not automatic on creation or dissemination or publication. It is a privilege which the author may freely claim, but one which he must assert clearly enough so that the public will know what is in the public domain and what is not. The most effective way of doing this Is by a dated notice of copyright, but there are obvious difficulties about affixing such a notice to works, such as broadcasts, that are either heard and not seen, as in radio, or if they are visually perceptible, as in television, are ephemerally seen by the viewer. The third leg of what turns out to be a rather shaky stool is the report's preference for continuing a term of years as the measure of duration, renewable for a longer term. Each leg of the stool-public dissemination as the basis for inception of copyright; an affirmative claim of copyright as essential to protection; a period of duration that releases most works to the public domain in a relatively short time-is solid enough; but the finished product is unstable. 

This is so largely because it must rest on two awkward bumps in the Universal Copyright Convention-the third paragraph of article IV.2 and article VI. In the case of a state which, like the United States, does not compute duration by the life of the author plus a term of years, article IV requires a term of not less than 25 years from registration or publication; and article VI defines publication in classical terms-the distribution of tangible copies, readable or otherwise visually perceptible. 

All this is made clear enough in the report, as are the solutions which attempt to bring dissemination without publication into the statutory scheme, and, at the same time, to satisfy the UCC requirements as to duration, and our American ideas about notice. I will not comment in detail on the proposed solutions, because the restatement of the problem has been too lengthy already; but I have to observe that they seem to me complicated and awkward. I am also struck by the complexity of the proposals for transition to a lengthened second term of 48 years. This is to some extent a separate matter from the difficulties outlined above; I note only in passing that the period of transition, which in many cases will have the practical effect of dividing the total term into three parts, will continue for a long time.

What is the way out of these difficulties, short of attempting to change the UCC? I suggest that, though I share the preferences of the report for a fixed term of years, it may have to be abandoned for human (as distinct from corporate) authors. The UCC requirement of a term not less than life plus 25 years (IV.2., first paragraph) was made attractive by a presumably deliberate omission of any definition of the mode of inception. It can, I take it, be easily assimilated to any conventional mode-dissemination, publication, registration. This bait may be too tempting to resist. My other hasty suggestion is that we ought to think more about the question of requiring a claim of copyright-something akin to the printed notice-upon any kind of dissemination. If the public is entitled to be advised that a printed work is subject to copyright, there seems to be some merit in applying the same criterion to other works.  (265-266)

Panel Discussion & Comments (Part 2)

Derenberg

2/15/63

Walter Derenberg

3. Even in the light of the U.C.C., it would still be desirable to assimilate our copyright law to the laws prevailing in the great majority of other nations, so that ultimately perhaps a fusion of the U.C.C. and the Berne Convention may become a reality.

 (e) I do not believe there should be any difference. whatever with regard to the notice requirements as between foreign and domestic works. In other words, I agree that the UCC. notice should be acceptable for domestic purposes. both with regard to form and position, but more than that. I think we may want to consider further relaxation of the present notice requirements when it comes to articles such as earrings, artistic features of textile, glassware, etc. Under the trademark law we us•e to have a rigid requirement of affixation of the trademark to the article itself but now permit the trademark and the notice to appear on containers, receptacles, and "displays associated with" the product. I believe that a similar relaxation of the notice requirements of the copyright law would be desirable in order to eliminate some of the technical defenses so frequently raised in this type of case, witness, for instance, the second circuit decision in Ideal Toy.

Panel Discussion & Comments (Part 2)

Levitas

2/15/63

Elliot Levitas- “As you know, Article 4(2) of the 1948 (Brussels) text of the Berne Convention states that "the enjoyment and the exercise of these rights shall not be subject to any formality . . ." Article 4(2) of the 1928 (Rome) text of the Berne Convention is substantially identical. There is no proposed change in the text of Article 4(2) for the 1967 Stockholm Revision Conference. 

In Europe, Member States of the Berne Union include Austria, Belgium, Bulgaria, Czechoslovakia, Denmark, Finland, France, Germany, Greece, Holy See, Hungary, Ireland, Italy, Japan, Liechtenstein, Luxemburg, Monaco, Netherlands, Norway, Poland, Portugal, Rumania, Spain, Sweden, Switzerland, United Kingdom and Yugoslavia. 

In South America, our impression is that the trend is away from requiring a "copyright notice". For example the new Venezuela Copyright Law ("Gaceta Oficial" of 3 January 1963) assures copyright in a work "by the sole fact of its creation" (Art. 5). Cf., also, Art. 9 of the new Peruvian Copyright Law ("El Peruano" of 3 November 1961: "copyright stems from the actual creation of the work, without need for registration, deposit or any other formality . . .") and Art. 2 of the new El Salvador Copyright Law ("Diario Oficial" of 17 September 1963: "The creation of an intellectual or artistic work enjoys, in respect thereof, by the fact of its creation, a right of exclusive property, opposable to all other persons."). We are not aware of any new South American laws which condition copyright on a proper "copyright notice".

U.C.C. "copyright notice" provisions were a compromise between the Berne Union and American systems and European support of Article III was based on the fact that American acceptance of the U.C.C. would result in a decrease in formalities under American law, and would not increase formalities for Berne Union Members, due to the "safeguard clauses". (cf. "Records of the Intergovernmental Copyright Conference", pp. 77,123-124). It is equally clear that the date of publication becomes a less significant element of the "copyright notice" when protection is based on the life of the author rather than the date of publication. (p. 387)

Preliminary Draft & Discussion (Part 3)

7/20/64

Preliminary Draft and Discussion (Part 3) (7/20/64 [Issued]) 

Preliminary Draft & Discussion (Part 3)

Levitas

7/20/64

Comment of Elliot Levitas

You will recall that last week in Washington, following the Copyright Revision Panel Meeting, we discussed an article which appeared in the October 16th issue of Variety ascribing to the Copyright Office the statement that the trend in Europe, Africa, and South America was towards the use of copyright notice and that any attempt to abandon copyright notice would be "a step backward." Although it is our understanding that no one in the Copyright Office actually made such a statement at the Copyright Revision Panel Meeting as ascribed to it by the Variety article, we want to go on record, nonetheless, as disagreeing with the substance of that statement.

As you know, Article 4(2) of the 1948 (Brussels) text of the Berne Convention states that "the enjoyment and the exercise of these rights shall not be subject to any formality . . ." Article 4(2) of the 1928 (Rome) text of the Berne Convention is substantially identical. There is no proposed change in the text of Article 4(2) for the 1967 Stockholm Revision Conference.

U.C.C. "copyright notice" provisions were a compromise between the Berne Union and American systems and European support of Article III was based on the fact that American acceptance of the U.C.C. would result in a decrease in formalities under American law, and would not increase formalities for Berne Union Members, due to the "safeguard clauses". (cf. "Records of the Intergovernmental Copyright Conference", pp. 77,123-124). 

It is equally clear that the date of publication becomes a less significant element of the "copyright notice" when protection is based on the life of the author rather than the date of publication (pp386-87)

Further Panel Discussion (Part 4)

12/1/64

Further Panel Discussion and Comments (Part 4) (12/1/64 [Issued])

Further Panel Discussion (Part 4)

Goldman

12/1/64

Goldman: Subsection (c) of section 24, dealing with position, adopts the rule in the Universal Copyright Convention, the first sentence saying: "The notice shall be placed.., in such manner and location as to give reasonable notice of the claim of copyright." The second sentence authorizes the Register to specify in regulations examples of acceptable positions of the notice, but makes it clear that the Register's specification is not to be considered exhaustive. 

Further Panel Discussion (Part 4)

Levitas

12/1/64

Levitas: When we get to the question of notice, I assume that the notice will still relate to questions of publication. On the other hand, as I understand its purpose (and leaving aside its benefits or disadvantages), one of the arguments in favor of a notice provision is that it enables any user, or any person coming in contact with the work bearing copyright notice, to have some clear understanding as to when the copyright will expire. Now, if there's no requirement as to including the year of creation in the notice once a work is published (assuming it was published more than 25 years after its creation) a question might arise as to whether or not the notice provision is adequately serving its purpose-or at least one of the advantages which has been argued in its favor. Similarly, a U.C.C. question as to notice would be involved there. But, addressing myself primarily to this question of term, I think the question raised by Spence Olin earlier is something which cannot he ignored by this group. I am addressing myself now to the political considerations involved. It seems that most of the discussions of copyright and copyright revision have been conducted-necessarily so--by a group of people who are intimately familiar with its background, With its operation, and with its effect. However, ultimately this question of term, and the question of copyright revision completely, will be resolved by Congressmen and Senators. (p. 32)

Further Panel Discussion (Part 4)

Waldheim

12/1/64

Waldheim. Sections 24 to 28 preserve, with some modifications, the requirement of a notice of copyright as a condition of copyright protection. As in the past, this bill builds a platform to sustain the author's copyright and then, by the requirement of a copyright notice, builds in a trapdoor through which the copyright can be lost. Why?  The first element in the copyright notice is a word or symbol to indicate that copyright is claimed. Can we not assume, as nearly all the other countries of the world assume, that the creator of an original work does not intend to dedicate it to the public? If he does intend to dedicate it, the law could provide that this may be accomplished by inserting a notice reading "Copyright disclaimed." Just because the author or his publisher may forget to insert a copyright notice, or because the notice is in the wrong place or in the wrong form, why should the author forfeit the results of his labor.

Karp In the third line of section 24(a) we find what appears to me to be a departure from the present law: the requirement that. the notice appear on the work published either here or abroad. Now, an American author or an American publisher who has the publishing rights and licenses their publication abroad cannot control compliance by a foreign publisher with the United States copyright law. And, unless I read the section incorrectly, if a foreign publisher who has got a right to publish a book in France or England or someplace else breaches his contract by failing to put the notice in his edition, this can forfeit the United States copyright.

I had always thought that copyright was a matter of territorial law: that our copyright law shouldn't reach beyond our borders, and that nobody else's law should reach here. For that reason, and for the very practical reason that many occasions arise in which compliance with the law cannot be compelled from within our borders, I don't, see the advantage or the fairness of staking the existence of a copyright on somebody else's failure to comply with the United States copyright law, whether it be in France, or Afghanistan, or anyplace else. (p79)

Further Panel Discussion (Part 4)

Diamond

12/1/64

Comment of Sydney A. Diamond

My feelings are strongly against formalities, particularly the copyright notice. I see no reason why the general understanding of anyone dealing with literary or artistic property should not be that it probably belongs to somebody. That is the general approach with regard to tangible personal property; I see no reason for distinguishing intangible personal property. Indeed, this is the standard approach in Berne Union countries, where, as you know, a copyright system has been in existence for many years without the requirement of any notice whatsoever. The prospective user has the burden of determining for himself whether any literary or artistic material is in the public domain; the presumption under which he must operate as a practical matter is that it is not free for use unless and until he can determine the contrary. Particularly if we go to a life-plus-years system, the determinative event will be the death of the author and this is something which, with rare exceptions, is readily determinable from reference sources. The notice then would serve no useful purpose.

I am aware of the argument that notice requirements are becoming more familiar to the copyright industries throughout the world due to the influence of the notice provision in the Universal Copyright Convention, and that notice requirements are even beginning to appear in foreign legislation. With all respect, I consider this a boot-strap type of argument. The fact that the overly technical requirements of the United States statute should have influenced the UCC and eventually some other countries does not support the view that we ought to continue the same or a similar system in our proposed new legislation in this country. (p 338)

Comment of Authors League of America Inc  The requirement for notice in copies published abroad should be deleted. This is not in the present Act, it is unnecessary, and it would help defeat many copyrights. Authors and publishers cannot control the actions of foreign publishers. It is also poor practice to impose such conditions on foreign publication as a condition for American copyright protection. American authors and publishers could be subjected to many difficult requirements abroad, of other countries followed this example. (p317)

Further Panel Discussion (Part 4)

Kellman

12/1/64

Kellman. With all due respect to Mr. Kaye, whose opinions I have always found valuable and interesting, I should like to take issue with what I may call "the scrap of paper philosophy'-the fear of having everything written become entitled to protection. In Europe, where notice is not required except for the U.C.C. requirements, there apparently has been no trouble because of the fact that untold quantities of paper become entitled to copyright protection. If anything that is written is of no value, then no one wants to use it--except possibly those uses that could be made anyhow on the ground of fair use. If it is of value then it should be protected, and the author or the owner should have the right to decide. I would rather have too many writings protected in theory, even though no one gives a darn or wants to use them, than to create requirements that will inevitably create Pitfalls. (90)