Jane's Tables

Study 7

1960

Text:

Copyright Office Study 7 Copyright Notice, 1960 [footnotes omitted]

B. INTERNATIONAL COPYRIGHT "BERNE" CONVENTIONS 

The revisions made by the Berlin Convention of 1908 brought about a fundamental change. The second paragraph of article 4 provided as follows: 

The enjoyment and the exercise of these rights shall not be subject to the performance of any formality; such enjoyment and such exercise are independent of the existence of protection in the country of origin of the work. 

This provision has been incorporated without appreciable change in the latest revisions of the "Berne" Convention-the Rome Convention of 1928 and the Brussels Convention of 1948. The second paragraph of article 4 provided as follows: The enjoyment and the exercise of these rights shall not be subject to the performance of any formality; such enjoyment and such exercise are independent of the existence of protection in the country of origin of the work. This provision has been incorporated without appreciable change in the latest revisions of the "Berne" Convention-the Rome Convention of 1928 and the Brussels Convention of 1948.147 The original 1886 convention contained two provisions specifically requiring a "notice" (that is, a statement of reservation) as a condition of certain rights. First, article VII permitted free reproduction of "articles from newspapers or periodicals * * * unless the authors or publishers have expressly forbidden it," and provided that "[f] or periodicals it shall be sufficient if the prohibition is indicated in general terms at the beginning of each number of the periodical." The principle of this provision has been incorporated in all later revisions of the convention, although in somewhat different and more limited form. The Paris revision of 1896 148 excluded from the provision's effect "[s]erial stories, including tales;" for other types of articles unauthorized use could be prevented only if "the authors or editors shall have expressly declared in the newspaper or periodical itself in which they shall have been published that reproduction is forbidden. The provision was simplified in the Berlin revision of 1908,149 and appears as article 9 in the Rome Convention of 1928 and the Brussels Convention of 1948; in the latest revision it reads as follows:

2. Articles on current economic, political or religious topics may be reproduced by the press unless the reproduction thereof is expressly reserved;

The other specific "notice" provision of the 1886 convention 150 referred to the right of musical performance, and read as follows: The stipulations of article II [the right of national treatment] shall apply equally to the public performance of unpublished musical works, or of published works in which the author has expressly declared on the title page or commencement of the work that he forbids the public performance thereof. The Berlin Convention of 1908 specifically abrogated this requirement, and instituted a provision which has appeared in all of the later revisions: 

3. In order to enjoy the protection of this article [the right of public performance]. authors shall not be bound, when publishing their works, to forbid the public presentation or performance thereof. The various "Berne" Conventions also contains a few provisions which would permit contracting states to require a notice for certain purposes. For example, the latest revision (the Brussels Convention of 1948), in addition to permitting the requirement of a notice for articles of current interest, provides that it shall be a matter for domestic legislation to determine the conditions under which works of applied art may be protected, and the conditions under which lectures and similar works may be reproduced by the press.

C. THE UNIVERSAL COPYRIGHT CONVENTION 

It is generally recognized that the Universal Copyright Convention, signed at Geneva in 1952, represents an effort to reconcile the fundamental differences between those countries which base copyright protection on the performance of certain formalities, and those which do not. 155 The foundation stone on which the convention is built is that provision of article III which reads as follows: 

1. Any Contracting State which, under its domestic law, requires as a condition of copyright, compliance with formalities such as deposit, registration, notice, notarial certificates, payment of fees or manufacture or publication in that Contracting State, shall regard these requirements as satisfied with respect to all works protected in accordance with this Convention and first published outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol © accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright.

It is worth noting that the compromise embodied in this provision involves the use of a prescribed form of notice as a substitute for other types of formalities.

V. THE COPYRIGHT NOTICE IN THE LAWS OF FOREIGN COUNTRIES

 A. GENERAL NOTICE PROVISIONS

Notice as a condition of copyright 

As will be seen below many countries require a notice with respect to particular classes or uses of copyrighted works. In addition there are five countries, other than the United States, which appear to require some sort of notice as a fundamental condition of copyright protection. The statute of the Philippines which is patterned after that of the United States, requires both publication with notice and registration as conditions of copyright in published works, and contains a comparatively simple notice provision: SEC. 16. The notice of copyright required by section eleven of this Act shall consist of the word "Copyright" accompanied by the name of the copyright proprietor and the year in which the copyright was registered.

 . . .

Notice mandatory but not as a condition of copyright

The new Mexican copyright statute, which came into effect in January 1957, embodies an interesting approach to the notice problem. Article 23 provides as follows: 

Published works protected by this law shall bear the expression "derechos reservados" (rights reserved), or its abbreviation "D.R.," followed by the symbol © and the full name and address of the copyright owner and an indication of the year of first publication. These particulars shall be placed in such manner and location that they shall be readily visible and give clear notice of claim of copyright. However, the indication of the reservation of copyright in this or any other form shall not be an essential condition for the protection of the work, but shall render any publisher who omits them liable to the sanctions prescribed by this law. [Emphasis supplied.] . . .

The copyright laws of three countries (Republic of China, Liberia, and El Salvador) appear to require a notice for published works, but do not make clear what consequences follow from failure to use a notice. The Chinese copyright statute provides that no action against an infringer may be instituted until registration has been made, and the regulations issued under the statute in 1944 provide for a notice to appear on registered works, as follows: SECTION 6. Any literary or artistic work which has been registered shall bear the inscription "Registered by the Ministry of lnterior on (day) ________________ (month) (year)" and the certificate number, on the last page of the said work. . . 

B. Special Notice Provisions [omitted]

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VI. PROPOSALS SINCE 1909 FOR REVISION OF THE NOTICE REQUIREMENTS 

A. THE DALLINGER BILL, 1924 

One of the earliest of the general revision bills designed to permit the United States to become a member of the Berne Copyright Union was H.R. 9137, which was introduced by Representative Dallinger on May 9, 1924. The bill provided that no notice was to be required as a condition of copyright, but permitted the use of a notice consisting of the word "Copyright" or the abbreviation "Copr.", accompanied by the name of the copyright proprietor. 

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OTHER DEVELOPMENTS, 1928-32 

While the Vestal bills for general revision of the law were being considered, other attempts were being made to modify the copyright law only to the extent necessary to permit the United States to become a member of the Berne Union. Typical of the bills introduced for this purpose was H.R. 15086, which was submitted by Representative Vestal to the 2d session of the 70th Congress on December 10, 1928. 

This bill provided for the elimination of formalities with respect to works of foreign authors in the following fashion: 

SEC. 2. * * * foreign authors who first publish their works in any country which is a member of the Copyright Union, as well as all authors who are within the jurisdiction of one of the countries of the said union, shall enjoy for their works, whether unpublished or published for the first time in one of the countries of the said union, such rights as the laws of the United States now accord or shall hereafter accord to citizens of the United States, as well as the rights specially accorded by the said convention: * * * 

SEC. 3. The enjoyment and the exercise by such authors of the rights and remedies accorded by the copyright laws of the United States and the said convention shall not be subject to the performance of any formalities other than such as are authorized by the said convention, and such authors shall not be required to comply with the provisions of the copyright laws of the United States as to publication with notice of copyright, * * * This and similar measures, which would have had no effect upon the notice requirements for domestic works, were never reported from committee. On March

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F. THE DUFFY BILL AND OTHER DEVELOPMENTS, 

1933-36 Senator Dill reintroduced his general revision bill in the 73d Congress on March 13, 1933 (S. 342), but no further action was taken on it. On May 31, 1933, a short bill, H.R. 5853, was introduced by Representative Luce to permit the United States to become a member of the Berne Union by exempting works of foreign authors from compulsory formalities; the bill was also introduced in the Senate by Senator Cutting as S. 1928 on June 10, 1933. On February 16,1934, Secretary of State Cordell Hull recommended to President Roosevelt that the United States adhere to the Berne Convention. The President sent this recommendation to the Senate for advice and consent, and not long thereafter hearings were held on S. 1928 326 by the Senate Foreign Relations Committee. Opposition developed to the adherence of the United States to the Berne Convention, and near the close of the hearings, it was suggested that the Secretary of State confer with the various conflicting interests and report later to the Senate Committee. As a result, the Interdepartmental Committee on Copyright, headed by Dr. Wallace McClure of of the State Department, was organized. Representatives by the Copyright Office and the Department of Commerce were included on this committee, which formulated a bill, S. 2465,328 later introduced in the Senate on March 13, 1935, by Senator Duffy. A second draft of this bill was introduced by Senator Duffy on May 13, 1935.329 This bill was favorably reported by the committee 330 and passed the Senate on August 7, 1935.33

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THE SHOTWELL COMMITTEE BILL AND OTHER DEVELOPMENTS, 1937-41 

Various revisions of the Daly bill, which substantially incorporated the notice provisions of the Duffy bill, were introduced in both houses of Congress between 1937 and 1941; although they attracted some attention, no action was taken on any of them. The most significant development during this period actually took place outside of Congress. A Committee for the Study of Copyright, headed by Professor James T. Shotwell of Columbia University, was organized within the framework of the National Committee of the United States of America on International Intellectual Cooperation, a group related to the League of Nations' Committee on Intellectual Cooperation: its purpose was essentially to draft a new general revision bill permitting the United States to join the Berne Union.

The Shotwell Committee, which was composed of representatives of most of the major groups interested in copyright, held a number of meetings during 1938 and 1939. The fullest discussion of the notice requirements occurred during one of the early sessions, at which representatives of the authors' groups urged the unfairness of a situation in which an author's rights can be irretrievably lost because of a technical error on the the part of a publisher over which the author himself has no control. The motion picture representatives, on the other hand, maintained that the notice is of great value to users; and they argued for a stricter system of recording transfers of rights under a copyright. On the notice question, the position of the motion picture interests was summarized as follows: 

When a man has common law rights, it is true he doesn't need any notice or registration of any sort, and can hold someone for infringement, but we must not forget he has only his common law rights so long as he withholds the work from publication, and then he has them perpetually, but once (excluding the fact that a performance is not publication) he puts it in print, he has no common law rights any longer, and people interested want to know whether or not the work is in the public domain. A proposal to permit publication without losing what would have been previously the common law rights, by not putting any notice on it, will make it extremely difficult to tell when works fall into the public domain. 

At one point in the discussion it was suggested for the authors that, since users almost invariably conduct their own investigations rather than relying solely on the notice for information concerning the copyright, the notice actually serves no real purpose. A representative of the broadcasters replied: 

That isn't invariably true. The convenience of notice to us is that it gives us the starting point * * *. It is a great convenience for us to have that starting point. I am not saying that the author should lose all of his writings if the publisher omits doing it. I say it is good for us to have it and we would like to have it encouraged if not made compulsory, by making it attractive to do it.

The "Shotwell Committee" bill was introduced by Senator Thomas as S. 3043 343 on January 8, 1940. It provided that copyright was to be extended "without compliance with any conditions or formalities," 349 and it would have restored (without prejudice to users who had already begun an undertaking) the copyright in works which had previously been published with defective notices. The bill contained indirect recognition that notices of copyright could be used voluntarily, 351 but included no indication as to the preferred form and position of the permissive notice, and offered no incentives for the use of such a notice. Section 17(3) provided: 

The failure to register any claim to copyright, or to record a grant, or to publish any work with notice of copyright, shall not affect the validity of any copyright or right therein, nor impair the rights of the author or other owner thereof, except as in this act otherwise expressly provided.

There were no hearings or further action on the "Shotwell Committee" bill. Nevertheless, it is of some historical importance, not only because of the thoroughness with which it was prepared, but also because it represents the last full-scale effort at reconsideration of the U.S. copyright notice requirements. 

. . . 

Some of the objections to the present notice requirement might no doubt be minimized by a more liberal and flexible specification of the form and position of the notice. As to position, for example, consideration might be given to a provision along the lines of the Universal Copyright Convention, which provides that the notice be "placed in such manner and location as to give reasonable notice of claim of copyright." And as to form, it might be provided that an error in the name or the year date would not invalidate the notice, and could be cured by the recording of corrective data in the Copyright Office. (p. 48)

VII. Review of Basic Problems

THE ISSUES RAISED BY COPYRIGHT NOTICE

The opponents of notice as a fundamental condition of copyright have attacked the general principle on four major grounds: 

1. Notice is anomalous.-Everyone is entitled to the fruits of his labor; the notice requirement, which forces an author to make an affirmative claim or forfeit copyright protection, is in basic conflict with this principle. 

2. Notice is anachronistic.-Most of the other countries of the world have no general notice formalities, and in clinging to the requirement the United States is hopelessly behind the times. 

3. Notice is useless.-Since anyone wishing to determine the ownership or expiration date of a copyright must necessarily go beyond the notice, it is in reality a meaningless technicality. 

4. Notice is unjust and oppressive.-Many copyrights are lost because of technical defects in the notice over which the author had no control; an author is not a businessman and is not equipped to deal with complex formalities. 

The leading arguments in support of a notice requirement may be summarized as follows: 

1. Notice is socially desirable.-No one is interested in copyrighting the large majority of published works but, without formalities, they would be pointlessly kept in the private domain for many years; this would inevitably hamper scholarship and free cultural interchange.

 2. Notice fits the US situation.-Far from being an outmoded concept, notice is increasingly needed to meet the demands for copyright information created by technological developments and the growing number of "secondary users." 

3. Notice accords with the U.S. theory of copyright.-Copyright in the United States is a limited grant of a monopoly to provide an incentive to creation, rather than a natural right of the author. It is thus appropriate to require the author to fulfill certain conditions which are of benefit to the public. 

4. Notice is effective in practice.-Notice fulfills a vital function in informing the public that a claim exists, and in providing users with at least a starting point for determining ownership and duration. The burden of affixing a notice is generally very slight. 

These opposing arguments can be elaborated almost endlessly, and much support can be found for both points of view. It is not the purpose of this paper to reach conclusions, but simply to frame the basic issues presented by notice in the general revision of the copyright law. In essence, the arguments for and against a notice requirement may be said to revolve around two opposing aims: 

On the one hand, to assure to all authors the benefit of copyright protection for all of their works. 

On the other, to facilitate the dissemination of works, by allowing free use of works in which no claim to copyright is asserted, and by giving prospective users a readily available starting point for determining the ownership and duration of copyright when a claim is asserted. (p. 47)

ABOLISHMENT OF THE NOTICE 

Complete elimination of the notice requirements has been urged by the author-publisher groups, as simplifying the securing of copyright. If notice were eliminated, there would also be no necessity for dealing with the complicated details of the notice requirements in various kinds of works. On the other hand, it has been urged that a provision bringing all published works into the private domain would hamper the dissemination and scholarly use of copyright material. 

C. INCENTIVES FOR VOLUNTARY USE OF NOTICE One of the principal arguments advanced by the opponents of compulsory notice is the injustice of having copyright forfeited irrevocably for failure to observe the technical requirements of notice. On the other side, one of the principal arguments of those favoring notice is the importance of protecting innocent users, who had relied on the absence of notice, against liability for infringement. As noted above, some of the earlier revision bills have attempted to reconcile these opposing views by a system under which notice is a condition of certain remedies but not of the right itself. These bills would have permitted copyright to subsist without a notice, but would have limited the remedies against an infringer who relied on the absence of notice, either to an injunction against future infringement, or to a reasonable license fee.

. . . D. The Specific Notice Requirements

There has been general agreement that the notice provisions of the present law leave much to be desired. Some of the requirements are ambiguous, others are incomplete, and still others are ill adapted to present-day media of expression. By requiring the notice to meet very limited and specific conditions as to form and position, the present statute has appeared to many as unduly restrictive and as resulting in a number of cases of technically faulty notices. 

Some of the objections to the present notice requirement might no doubt be minimized by a more liberal and flexible specification of the form and position of the notice. As to position, for example, consideration might be given to a provision along the lines of the Universal Copyright Convention, which provides that the notice be "placed in such manner and location as to give reasonable notice of claim of copyright." And as to form, it might be provided that an error in the name or the year date would not invalidate the notice, and could be cured by the recording of corrective data in the Copyright Office. 

If some form of notice is to be retained, consideration must also be given to the clarification of other details, including the notice on collections of copyrighted works, the requirement of a notice on works published abroad, the year date or dates in a revised edition, and the notice on a sheet reproducing a work repetitively. These questions, while of great practical importance, are subsidiary to the basic issues raised by the copyright notice. Analysis of detailed alternatives on these points is not within the scope of the present paper.