GENERAL
GUIDE
TO
THE
COPYRIGHT
ACT
OF
1976
SEPTEMBER 1977
GENERAL GUIDE TO THE COPYRIGHT ACT OF 1976
TABLE OF CONTENTS
Introduction
Historical Background - Chapter 1
Federal Preemption and Duration of Copyright - Chapter
2
Subject Matter of Copyright (including standards of copyrightability) -
Chapter 3
Eligibility for Copyright Protection in the United States - Chapter 4
Ownership and Transfers of Ownership - Chapter 5
Termination of Transfers and Licenses - Chapter 6
Scope of the Exclusive Rights Accorded Copyright Owners - Chapter 7
Fair Use and Other Limitations and Exemptions on Exclusive Rights -
sections 107, 108, 110, 112 - Chapter 8
The Compulsory Licenses and the Copyright Royalty Tribunal - Sections 111,
115, 116, 118 and Chapter 8 - Chapter 9
Notice of Copyright - Chapter 10
Deposit and Registration - Chapter 11
Manufacturing Requirements and Importation of Copies and Phonorecords -
Chapter 12
Infringement of Copyright and Remedies - Chapter 13
Administrative Provisions - Chapter 14
Appendices:
1.
Overview of the law in outline form
2.
Chart Comparing the Act of 1909 with the Act of 1976
3.
Educational and Contu Guidelines
4.
Official Source Materials on Copyright Revision
INTRODUCTION
The Copyright Act of 1976, Public Law 94-553 (90 Stat.
2541), is a general revision of the copyright law, Title 17,
United
States Code;
it becomes fully effective on January 1, 1978. The
new law supersedes the Copyright Act of 1909, as amended, and is
the first extensive revision of the 1909 law.
Early in 1977 the Register of Copyrights established
in the Copyright Office a Revision Coordinating Committee, chaired
by the Register, to oversee the development and coordination of
plans for implementation of the new law. The Committee recognized
that an important part of this initial preparation was staff training
and it asked Marybeth Peters, Senior Attorney-Adviser, to plan,
organize, and conduct all internal training on the new law as well as
to coordinate all training activities outside of the Copyright
Office. As a result of her successful execution of the first part of
this assignment, 260 staff members, in 15 sessions of one and one-half
hours each, completed an intensive study of the new law; 125 other
staff members participated a "mini-course". Ms. Peters, who has a
teaching as well as a legal background, prepared all instructional
materials and designed the format for both the short- and long-term
courses.
Because Ms. Peters' instruction was basic and her "lesson
plans" comprehensive, the Copyright Office received repeated requests
for wider dissemination of her instructional materials. The Revision
Coordinating Committee is responding to this demand by publishing
Ms. Peters' guide. This general guide to the Copyright Act of
1976 is
not
an official summary of the law. It does not attempt to
deal with all of the issues raised by the revision legislation nor
to provide answers to legal questions. It is, however, an extensive
training tool, the text of which follows the language used by Ms.
Peters, with only a change in tense to avoid an appearance of
obsolescence on January 1, 1978.
In developing the lectures and lesson plans, Ms. Peters
relied heavily on the language of the law itself, the legislative
reports, and the various statements of the Register of Copyrights
to the Congress, i.e., the 1961 Report of the Register, 1965 Supplemental
Report, and the 1975 Second Supplemental Report. Copies of these
documents may be obtained by writing to the Copyright Office,
Library of Congress, Washington, D.C. 20559. The fee for the
1961 Report of the Register is $.45 while the fee for the 1965
Supplementary Report is $1.00; there is no charge for the rest
of the material.
THE VIEWS EXPRESSED IN THIS DOCUMENT ARE THOSE OF MS.
PETERS AND DO NOT NECESSARILY REFLECT THE OFFICIAL VIEWS OF EITHER
THE COPYRIGHT OFFICE OR ME LIBRARY OF CONGRESS.
- 1:1 -
CHAPTER I
HISTORICAL BACKGROUND
Copyright in the United States stems from a 1710 English
statute known as the Statute of Anne. Following the American Revolution,
most of the states enacted copyright laws generally patterned after
this English act. The need for federal legislation, however, was
soon recognized, and when the U.S. Constitution was drafted the
principle of copyright was written into it. Article I, section 8
grants Congress the power "to promote the progress of science and
useful arts by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries."
Thus, the primary purpose of copyright legislation is to foster the
creation and dissemination of intellectual works for the public
welfare; an important secondary purpose is to give creators the
reward due them for their contribution to society.
The first federal copyright statute was enacted in 1790
and covered maps, charts and books. This statute granted to authors
and proprietors a term of 14 years with the privilege of renewal for
a second term of 14 years. There were general revisions of the
copyright law in 1831, 1870 and 1909.
The law under which we have been operating for the past
68 years is the Act of March 4, 1909. This act is based on the
printing press as the prime disseminator of information. Significant
changes in technology have resulted in a wide range of new communications
techniques that were unknown in 1909--for example, radio, television,
communications satellites, cable television, computers, photocopying
machines, videotape recorders, etc., and there are promises of even
greater changes in the future. This growth in technology made
revision of the Act of 1909 imperative.
There were a number of unsuccessful attempts to revise the
1909 Act. The present revision effort began in 1955 when Congress
appropriated the funds for a comprehensive program of research which
produced a series of 35 studies analyzing what were then considered
to be the major problems. In addition, the Register of Copyrights
issued a report on the "General Revision of the U.S. Copyright Law,"
in 1961.
- 1:2 -
Comments raised both by the studies and the Register's
Report led to a series of meetings with a panel of consultants
drawn from the copyright bar, representatives of the interested
parties, and the Copyright Office. These meetings spanned three
years and provided an opportunity to thrash out many of the problems.
Statutory drafts with deliberate alternatives included
were circulated for comment and Congressional consideration; then
an extraordinary process of compromise and negotiation began.
This process went on continuously for nearly fifteen years, down to
the very day the bill was finally passed by both Houses of Congress.
In 1967, after extensive hearings, the House of Representatives
passed a revision bill--H.R. 2512. It was hoped that the Senate
would take quick action on S. 597, the companion bill, but the cable
television issue appeared to be irresolvable at that time. There
then followed a long period of relative inaction. In 1974, however,
the revision effort again showed signs of life, and on September 9,
1974, by a vote of 70-1, the Senate passed S. 1361. It was, however,
too late for consideration of the bill by the House in that session
of Congress.
In 1976 Senator McClellan again introduced a copyright
revision bill, S. 22. On February 19, 1976, by a vote of 97-0,
the Senate passed it. On September 22, 1976, the House of Representatives
passed a revision bill which differed in part from the Senate version,
thus necessitating a Conference Committee. The Conference Report
was adopted by both houses on September 30, 1976, and on October
19, 1976, President Ford signed the revision bill into law. The new
copyright law, Public Law 94-553, with certain exceptions, takes
effect on January 1, 1978.
The Register of Copyrights, Barbara Ringer, speaking on
the revision bill, made the following comment:
"Except for the most prescriptive and technical
of its provisions, practically everything in the
bill is the product of at least one compromise,
and many provisions have evolved from a long series of
compromises reflecting constantly changing technology,
commercial and financial interests, political and
social conditions, judicial and administrative develop-
ments and--not least by any means--individual personalities.
The bill as a whole bespeaks concern for literally
hundreds of contending and overlapping special interests
from every conceivable segment of our pluralistic
society. It was not enough to reach compromise
on a particular point; all of the compromises had to
be kept in equilibrium so that one agreement did not
tip another over."
- 1:3 -
She went on to conclude that "It is a source of wonder that somehow
all of this succeeded in the end." But succeed it did, and we
now have a new law which makes fundamental and pervasive changes
in the U.S. copyright system. Some of the changes are so profound
that they may mark a shift in direction for the very philosophy
of
copyright itself.
- 2:1 -
CHAPTER TWO
FEDERAL PREEMPTION AND DURATION OF COPYRIGHT
[Chapter 3, Sections 301 to 305]
SINGLE NATIONAL SYSTEM (Section 301)
Federal preemption represents the most basic change in the
U.S. copyright system since its inception. Instead of the present
dual system of protection of works under the common law before they
are published and under the federal statute after publication, the
new law would, under section 301, establish a single system of
statutory protection for all works fixed in a copy or phonorecord.
The common law would continue to protect works (such as live choreography
and improvisations) up to the time they are fixed in tangible form,
but upon fixation they would be subject to exclusive federal protection
under the statute, even though they are never published or registered.
Some of the primary advantages of a single federal system
are:
1.
Promote national uniformity.
One of the fundamental
purposes behind the copyright clause in the U.S.
Constitution was to avoid the difficulties of
determining and enforcing an author's rights under
different state laws. Today national uniformity
is more essential than ever because of the advanced
methods of disseminating an author's work.
2.
Reduce
the
legal significance
of
"publication."
The concept of "publication" is outdated; undue
reliance on this concept has been one of the
most serious defects with the Act of 1909.
A single federal system will clear up what has
become a chaotic situation.
3.
Implement
the
"limited times" yrovision
in the
Constitution.
Common law protection in un-
published works is now perpetual, no matter
how widely they may be disseminated by means
other than "publication." Section 301 will place
a time limit on the duration of exclusive rights
in this type of work and thus will aid scholarship
by making unpublished. undisseminated manuscripts
available after a reasonable time.
- 2:2 -
4. Improve international dealings in copyrighted
material. No other country has anything like
our present dual system. In an era when copy-
righted works can be disseminated instantaneously
to every country, the need for effective inter-
national copyright relations, and the concomitant
need for national uniformity assume even greater
importance.
Exclusive Federal Jurisdiction (Section 301(a))
The intent of this subsection is to preempt and abolish any
rights under the common law or statutes of a state that are equivalent
to copyright and that extend to works coming within the scope of the
federal copyright law. Under section 301(a) all rights in the nature
of copyright (which are specified as "copyright, literary property
rights, or any equivalent legal or equitable right") are governed
exclusively by the federal copyright statute if the work is of a kind
covered by the statute. With the exception of sound recordings fixed
before February 15, 1972, states cannot offer a work protection
equivalent to copyright and it doesn't matter when the work was
created, or whether it is published or unpublished, in the public
domain, or copyrighted under the federal statute.
Section 1338 of Title 28, United States Code, also makes
clear that any action involving rights under the federal copyright
law would come within the exclusive jurisdiction of the federal
courts.
Rights Preserved by States (Section 301(b))
Any rights which a state may claim, which are not equivalent
to copyright, are preserved. Subsection (b) explicitly lists three
general areas left unaffected by the preemption: (1) subject matter
outside sections 102 and 103; (2) causes of action arising under
state law before the effective date of the statute; and (3) violations
of rights that are not equivalent to any of the exclusive rights
under copyright.
Sound Recordings (Section 301(c))
This subsection provides an exception for sound recordings
fixed before February 15, 1972 (the effective date of the law extending
federal copyright protection to this type of work). If this
provision were not included there would probably have been a resurgence
of piracy of sound recordings. States may, however, only protect
sound recordings fixed prior to February 15, 1972 and then may only
protect them until February 15, 2047.
- 2:3 -
DURATION OF COPYRIGHT WORKS CREATED AFTER THE EFFECTIVE DATE OF NEW LAW,
JANUARY 1, 1978 (Section 302).
This section specifies the duration of copyright protection
under the new act.
Basic term. Life of the author plus fifty years
after his or her death is the term for works created
after January 1, 1978.
Joint works. In the case of joint works by two
or more authors who did not work for hire, the fifty
year period is measured from
the date of
the death
of the last surviving author.
Anonymous and pseudonymous works. In the case of
these works, the term lasts for 75 years from the year
of first publication or 100 years from the year of its
creation, whichever expires first. If the identity of
the anonymous or pseudonymous author is revealed in
the records of the Copyright Office, the term will be
based on the life of the identified author plus fifty
years.
Works made for hire. Term is 75 years from first
publication or 100 years from creation, whichever
is shorter. (Work made for hire is defined in
section 101.) Since, under 201(b) the employer
is considered the "author", it would not be appropriate
to base the term on the author's life.
Presumption of author's death. Subsection (e) provides
that, after a period of 75 years after first publication
or 100 years after creation of a work, whichever
expires first, users are entitled to rely on a
presumption if they have no knowledge of whether or
when a particular author died. Any person who obtains
from the Copyright Office the proper document
("a
certified report"), indicating that the records
disclose nothing to show that a particular author is
still living or died less than fifty years before, is
entitled to the presumption that the author has been
dead for at least fifty years. Reliance in good faith
will be a complete defense in an infringement action.
- 2:4 -
Subsection (d) provides that any "interested" person
may record a statement of the death of an author or a statement
that the author is still living on a particular date.
There are a number of reasons for changing the term
of copyright protection from a set number of years to one
based upon the life of the author. Among those listed in
the legislative reports are:
1.
56 years is not long enough to insure an author
and his or her dependents the fair economic
benefits of the work. Also, life expectancy
has increased substantially.
2.
Tremendous growth in the communications media
has substantially lengthened the commercial
life of many works. A short term discriminates
against serious works whose value may not be
recognized until many years after its creation.
3.
There is no particular benefit to the public of a
short term. The price of public domain works is
usually no less than that of copyrighted works.
In some cases the lack of copyright protection
restrains dissemination since publishers cannot
risk investing unless they are assured of exclusive
rights.
4.
The year of death is a simpler and clearer method
of computing the term. All of a particular
author's works will fall into the public domain at
the same time.
5.
The renewal device, one of the worst features
of the 1909 Act will eventually be eliminated.
[NOTE: For works in their first term of statutory
protection on December 31, 1977, renewal in the
last (28th) year will still be necessary in order
to obtain the additional 47 years' protection. See
the discussion of section 304 below.]
6.
It places the United States in conformity with
most of the international copyright community.
It eliminates a major barrier to U.S. adherence
to the Berne Copyright Union.
- 2:5 -
DURATION OF COPYRIGHT IN PRE-EXISTING WORKS UNDER COMMON LAW
PROTECTION ON THE EFFECTIVE DATE OF THE NEW LAW. (Section 303).
For unpublished works already in existence on January
1, 1978, but not protected by statutory copyright and not yet in
the public domain, the new act generally provides automatic federal
copyright for the same life plus 50 or 75/100 year terms provided
for new works. All works in this category, however, are guaranteed
at least 25 years of statutory protection; the law specifies that
in no case will copyright in
a
work of this sort expire before
December 31, 2002, and if the work is published before that date the
term is extended by another 25 years, through the end of 2027.
DURATION OF SUBSISTING COPYRIGHTS (Section 304).
This section is a transitional provision, but an important
one. Subsection (a) deals with copyrights that are in
their first
term on January 1, 1978. It provides for a first term of 28 years
from the date it was originally secured, with a right to a renewal
term of 47 years--extending the total potential term of copyright
protection to 75 years. The application for renewal term must be
submitted within one year before the expiration of the original term
by the same specified renewal claimants as under the 1909 Act. The
reason for retaining the renewal provision is that many of the
present expectancies in these works are the subject of existing
contracts, and it would be unfair and confusing to cut off or alter
these interests. [NOTE: Although section 304(a) reenacts and preserves
the renewal provision the definition of "posthumous" adopted in
Bartok
V.
Boosey
&
Hawkes,
Inc., 523 F. 2d 941 (2d Cir. 1975) has
been included in both the House and Senate reports. The House report
defines it as "one to which no copyright assignment or other contract
for exploitation of the work
has occurred during
the author's lifetime,
rather than one which is simply first published after the author's
death." The Senate report states "The reference to a 'posthumous
work' in this section means one as to which
no assignment has
occurred
during an author's lifetime, rather than one which is simply first
published after the author's death."]
Subsection (b), which went into effect on October 19, 1976,
extends the renewal term automatically to a total of 75 years.
The last 19 years of the copyright term are subject to
a right of termination. [See Chapter 6.]
- 2:6 -
EXPIRATION DATE (Section 305).
The new law provides that all terms of copyright will run
through the end of the calendar year in which they would otherwise
expire. This will not only affect the duration of copyrights, but
also the time limits for renewal registrations.
EXAMPLES OF DURATION AND RENEWAL UNDER SECTIONS 304 AND
305:
1. A book was first published with the required notice
of copyright on July 1, 1950. The claim was
subsequently registered in the Copyright Office.
Under the 1909 Act the term would run from July 1,
1950 to July 1, 1978, and renewal registration was
required to be made between July 1, 1977, and July
1, 1978.
Under the new law there are two possibilities:
a.
If renewal is made before the effective
date of the new law--(renewed between
July 1, 1977, and December 31, 1977,)
section 304(b) is applicable and the
work is protected to December 31, 2025.
b.
If renewal is not made before January
1, 1978, section 304(a) is applicable.
Under 304(a) a renewal application must
be made "within one year prior to the
expiration of the original term." While
the normal expiration of the original
term would be July 1, 1978, section
305 extends it to December 31, 1978.
Thus, an application received before or on
December 31, 1978, will be accepted.
The renewal term is for 47 years and the
work is protected until December 31,
2025.
- 2:7 -
2. A musical composition is registered in unpublished
form on January 7, 1955.
Under the 1909 Act the term would run from January
7, 1955 to January 7, 1983. A renewal application
must be received between January 7, 1982, and January
7, 1983. An application received after January 7,
1983, would not be accepted.
Under the new law:
a.
Must renew between December 31, 1982, and
December 31, 1983.
b.
Renewal application received between
January 7, 1982 and December 31, 1982,
will not be accepted.
c. Renewal application received after
December 31, 1983, will not be accepted.
Section 304(a) provides that renewal application
and registration must be made "within one year prior
to the expiration of the original term." Normal
expiration would be January 7, 1983, (28 years
from the date the copyright was secured [here the
date of the unpublished registration]) but section
305 extends this to the end of the year in which
it would normally expire, in this case, December
31, 1983.
- 3:1 -
CHAPTER THREE
SUBJECT MATTER OF COPYRIGHT (INCLUDING STANDARDS OF COPYRIGHTABILITY)
[Chapter I, Section 102, 103 and 105]
The copyright clause of the U.S. Constitution empowers
Congress to grant to authors the exclusive rights in their "writings."
The Act of 1909 repeats the constitutional phrase in Section 4
and grants copyright to "all the writings of an author." Although
the broad sweep of this phrase may imply that the statutory copyright
grant is co-extensive with the constitutional power, it is clear
that Congress has not exhausted the scope of "writings of an author"
in the 1909 law.
It is well established, by a long line of court decisions,
that in order to be copyrightable under the statute the work must meet
the following requirements:
(A)
The work must be in the form of a "writing," i.e.,
it must be fixed in some tangible form from which
the work can be reproduced.
(B)
The work must be a product of original creative
authorship. Two interrelated elements are required:
originality and creativity.
(1)
The work must be original in the sense
that the author produced it by his own
intellectual effort, as distinguished
from merely copying a preexisting work.
There is no requirement of novelty,
ingenuity or esthetic merit.
(2)
The work must represent an appreciable
amount of creative authorship.
The requirement of fixation is retained in the new law
and serves as the dividing line between common law and statutory
copyright. Under the definitions in section 101, a work is
"fixed"
in a tangible medium of expression when its embodiment in a copy
or phonorecord, by or under the authority of the author, is sufficiently
permanent or stable to permit it to be perceived, reproduced, or
otherwise communicated for a period of more than transitory duration.
- 3:2 -
The new copyright law substitutes the phrase "original
works of authorship" for "writings of an author" to clarify that the
Constitutional power has not been exhausted in the copyright
legislation. Also, this new phrase more accurately reflects the
variety of authorship covered by the copyright law. Moreover, it
seems that the phrase "original works of authorship" will permit
protection for new forms of expression without allowing unlimited
expansion into areas completely outside the present congressional
intent.
The standard of original, creative authorship is not
changed by the new law. All of the 14 classes mentioned in section
5 of the 1909 law are covered by the new law as well. For the
first time, however, pantomimes and choreography are specifically
recognized as copyrightable works.
The new law continues and clarifies the principle of
existing law that copyright in new versions covers only the new
material and does not enlarge the scope or duration of protection
in preexisting works. The new law specifically provides protection
for compilations. The term "new versions" is changed to "derivative
works." The intent is that the terms "compilations" and "derivative
works" include every copyrightable work that employs preexisting
material or data of any kind. A difference is that the new law
does not condition copyright in such works upon securing the consent
of the copyright owner of the previous material. Instead the new
law provides that protection does not extend to any part of the work
in which such material has been used unlawfully.
SUBJECT MATTER OF COPYRIGHT: IN GENERAL (Section 102)
Section 102 provides that copyright protection subsists
in "original works of authorship" fixed in tangible form. Seven
broad categories are listed:
(1)
literary works;
(2)
musical works, including any accompanying
words;
(3)
dramatic works, including any accompanying
music;
(4)
pantomimes and choreographic works;
(5)
pictorial, graphic, and sculptural works;
(6)
motion pictures and other audiovisual
works; and
(7) sound recordings.
- 3:3 -
These categories are illustrative and are not meant to be limitative.
The 1965 Supplementary Report of the Register of Copyrights states
the categories are overlapping and not mutually exclusive. "It is
quite conceivable, for example, that within itself a motion picture
might encompass copyrightable works falling into all of the other six
categories."
"Literary works," "pictorial, graphic, or sculptural
works," "motion pictures," "audiovisual works" and "sound recordings"
are defined in section 101. These definitions make clear the
distinction between "works" and "material objects." Thus, under
the new law a "book" is not a work of authorship but a particular
kind of "copy." Instead, as the legislative reports make clear, the
author may write a "literary work," which in turn can be embodied in
a wide range of "copies" and "phonorecords," including books, period-
icals, computer punch cards, microfilm, tape recordings, etc.
It is Congress' intent (according to these reports) that
the standards of originality and creativity developed by the
courts under existing law should remain unchanged under the new
law. Thus, "deminimis" works, common or standard works, blank forms,
etc. will not be registrable.
Pantomimes and
Choreographic
Works.
The old law
had no specific provision for copyright in choreographic works,
although they could be registered as a "dramatic work." The same is
true
of pantomimes. To resolve any doubt as to the necessity for
dramatic content as a condition for protecting these recognized art
forms, the new law specifically mentions them. Choreographic works
are not defined in section 101 because the meaning is presumably
clear. The 1961 Report of The Register states, "For purposes of
copyright at least, the term 'choreographic works' is understood to
mean dane works created for presentation to an audience, thus
excluding ballroom and other social dance steps designed merely for
the personal enjoyment of the dancers." The legislative reports
state that "choreographic works" do not include social dance steps
and simple routines.
Computer Programs.
Although they are not mentioned as
copyrightable subject matter in section 102(a) and they are not
referred to explicitly in the definition of "literary works" in
Section 101, a careful reading of the new law with the legislative
reports makes it clear that computer programs or "software" is
within the subject matter of copyright. The definition of "literary
works" refers to works expressed in "words, numbers, or other verbal
or numerical symbols or indicia."
- 3:4 -
Section 102(b) states a fundamental principle: copyright
protection does not extend to ideas, systems, or methods, processes,
principles, etc., no matter how unique the concept. This proviso
was added as a result of the debate over the copyrightability of
computer programs, and is intended to make clear that, although
the programmer's "literary" expression, as embodied in a program,
would be copyrightable, his ideas, system and methodology would
not.
Typeface designs. House Report 94-1476 states that the
House Judiciary Committee wants to study whether typeface designs
should be included in a possible law to protect original designs
embodied in useful articles. (Page 50.) On page 55 of the same
report the following appears: "The Committee has considered, but
chosen to defer, the possibility of protecting the design of typefaces
..The Committee does not regard the design of typeface... to be
copyrightable 'pictorial, graphic, or sculptural work' within the
meaning of this bill and the application of the dividing line in
section 101." [NOTE: In Eltra Corp. v. Ringer, E.D. Va. Oct. 26,
1976 No. 76-264-A, the court found a typeface design to be a "work of
art" but refused to compel registration on the ground that Congress
had acquiesced in the "long standing" practice of the Copyright
Office of refusing to register such claims. 37 CFR section 202.10(c).
This case has been appealed.]
Works of Art and Ornamental Designs. The definition
of "pictorial, graphic, and sculptural works" in section 101 seeks
to draw as clear a line as possible between copyrightable works
of fine and applied art and uncopyrightable works of industrial
design.
Section 101 defines "pictorial, graphic and sculptural
works" as including "two-dimensional and three-dimensional works
of fine, graphic, and applied art, photographs, prints and art
reproductions, maps, globes, charts, technical drawings, diagrams,
and models. Such works shall include works of artistic craftsman-
ship insofar as their form but not their mechanical or utilitarian
aspects are concerned; the design of a useful article, as defined
in this section, shall be considered a pictorial, graphic, or sculptural
work only if, and only to the extent that, such design incorporates
pictorial, graphic, or sculptural features that can be identified
separately from, and are capable of existing independently of,
the utilitarian aspects of the article." The second sentence in this
definition is classic language and is drawn from Copyright Office
regulations promulgated in the 1940's and expressly endorsed by
the Supreme Court in Mazer v. Stein, 347 U.S. 201 (1954).
- 3:5 -
The copyright revision bill had a Title II which in origin
and content was essentially a separate though related piece of
legislation entitled "Protection of Ornamental Designs of Useful
Articles." This was to provide a limited form of copyright protection
to the ornamental design elements of useful articles. The House
deleted Title II as did the Conference Committee. The House Report
states that it will be necessary for the Committee to reconsider the
question of design protection in new legislation during the 95th
Congress.
Sound Recordings. A sound recording is a work "that
results from the fixation of a series of musical, spoken, or other
sounds, but not including the sounds accompanying a motion picture or
other audiovisual work, regardless of the nature of the material
objects, such as
disks,
tapes, or other phonorecords" in which it may
be embodied. Protection extends only to the particular sounds of
which the recording consists, and would not prevent a separate
recording or another performance in which these sounds are imitated.
Thus, mere imitation of a recorded performance would not constitute a
copyright infringement even where one performer deliberately sets
out to simulate another's performance as exactly as possible.
SUBJECT MATTER OF
COPYRIGHT:
COMPILATIONS
AND DERIVATIVE
WORKS
(Section 103)
Section 103 complements section 102; it provides that
a compilation or derivative work is copyrightable if it represents
an "original work of authorship" and falls within one or more of
the categories listed in section 102(a). The standards of copy-
rightability that apply to entirely original works also apply to
those containing preexisting works.
The legislative reports state that section 103(b) is
intended to define, more sharply and more clearly than does section
7 of the Act of 1909, the important interrelationship and correlation
between protection of preexisting material and of "new" material
in a particular work. The most important point is that copyright
covers only the material added by the later author, and has no effect
one way or the other on the copyright or public domain status of
the preexisting material.
- 3:6 -
Section 101 states that a "compilation" results from
the process of selecting, bringing together, organizing and arranging
previously existing material of all kinds, regardless of whether the
individual items in the material have been or ever could have been
subject to copyright. Thus, it would be possible to have a copyright
in a compilation of blank forms.
A "derivative" work requires a process of recasting,
transforming, or adapting "one or more preexisting works;" the
"preexisting work" must come within the general subject matter
of copyright set forth in section 102, regardless of whether it
is currently, or was ever, copyrighted.
Copyright is not conditioned upon the consent of the
copyright owner of the preexisting material. The new law provides
that protection does not extend to "any part of the work in which
such material has been used unlawfully." Thus, for example, an
unauthorized translation of a novel could not be copyrighted at all.
However, the owner of copyright in an anthology of poetry could sue
someone who infringed the whole anthology, even though the infringer
proves that publication of one of the poems was unauthorized. The
legislative reports indicate that the purpose of this is to prevent
an infringer from benefiting, through copyright protection, from his
unlawful act, but preserves protection for those parts of the work
that do not employ the preexisting work.
MATERIAL DENIED COPYRIGHT PROTECTION
The following are examples of types of works which
are denied U.S. copyright protection:
Works in the public domain. Section 103 of the Transitional
and Supplementary Provisions provides: This Act does not provide
copyright protection for any work that goes into the public domain
before January 1, 1978.
A work falls into the public domain, and is available to
everyone for use without payment or permission, when the copyright
owner has authorized publication of the work without the notice
of copyright required by the Act of 1909. It also enters the public
domain when the first 28th year term of copyright expires without
renewal.
- 3:7 -
Once a work has fallen into the public domain, copy-
right is lost permanently. The new law will not restore the copyright.
Ideas, methods, systems, principles. One of the fundamental
principles of both the old and new laws is that copyright does
not protect ideas, methods, systems, principles, etc. but rather
protects the particular manner in which they are expressed or described.
Section 102(b) contains this basic principle; it provides "[lin no
case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it
is described, explained, illustrated, or embodied in such
work."
Common or standard works. Works consisting of information
that is common property containing no original authorship, such
as standard calendars, height and weight charts, tape measures and
rulers, and lists of tables taken from public documents or other
common sources are not subject to copyright protection.
Devices and blank forms. Devices for measuring, computing,
or use in conjunction with a machine are not subject to copyright
protection. Common examples are slide rules, wheel dials, and
nomograms. Ideas, methods, systems, mathematical principles, formulas,
and equations are not copyrightable, and the same is true of devices
based on them. The printed material of which a device usually consists
(lines, numbers, symbols, calibrations) likewise cannot be the
subject of copyright because this material is necessarily dictated by
the idea, principle, formula or standard of measurement involved.
Blank forms and similar works, designed to record rather than convey
information, are not subject to copyright protection either.
Deminimis works. There are certain works to which the
legal maxim of "de minimis non curat lex" (the law does not concern
itself with trifles) applies. These are works in which the creative
authorship is too sli;_4ht to be worthy of protection. Examples
include names, titles, slogans, mere variations of typographic
ornamentation, lettering or coloring, translation of a work from
aural to printed form, transliteration of existing harmonies in a
musical work from piano
to
guitar tablature or ukelele diagrams.
Works of the United States Government (Section 105).
This section states a basic premise of the Act of 1909--that works
produced for the U.S. Government by its officers and employees
as part of their official duties are not subject to U.S. copyright
protection. The new law makes it clear that this prohibition applies
to unpublished works as well as published ones. The National
Technical
Information Service sought a limited exception to the prohibition
- 3:8 -
in section 105. The House version included such a provision which
was deleted by the Conference Committee. The Conference Report
states that a hearing on this issue should be scheduled for early in
the 95th Congress.
There is no mention of works prepared under a U.S. Government
contract or grant. The intent is to allow an agency to determine
whether or not an independent contractor or grantee is to be allowed
to have a copyright in works prepared in whole or in part with the
use of Government funds.
Section 105 allows the U.S. Government to hold copyrights
that have been transferred to it by "assignment, bequest, or otherwise."
- 4:2 -
The new law specifically recognizes stateless authors as
eligible for protection. Also, it broadens eligibility conditions
in three important ways:
First--it protects an author who is domiciled in a
foreign country with which the U.S. has
copyright relations through an international
treaty. Thus, even though the U.S. has no
relations with Iraq, an Iraqi author domiciled
in the United Kingdom, (a U.C.C. country)
would be eligible for protection here even if
he or she publishes in Iraq.
Second--the new law makes eligible works first
published either in the U.S. or another country
that is a party to the U.C.C., regardless of
the citizenship of the author.
Third-
-
all unpublished works, regardless of the
citizenship or domicile of the author are
eligible for U.S. copyright protection.
Finally, it is now clear that a work is subject to protection
in the U.S. even if only one of several authors is eligible.
- 5:1 -
CHAPTER FIVE
OWNERSHIP AND TRANSFERS OF OWNERSHIP
[Chapter 2, Sections 201, 202, 204 and 205]
Chapter 2 of the new law deals with ownership and transfer
of rights. The chapter begins with a reconfirmation that the fountain-
head of copyright is the author, and that copyright ownership belongs
to him or her in the first instance. As under the 1909 Act, an
exception is made for works made for hire.
BASIC PRINCIPLES OF OWNERSHIP (Section 201(a))
Two basic and well established principles of copyright are
restated in this section: 1) that the source of copyright ownership
is the author of the work and 2) in the case of a "joint work" the
coauthors are coowners.
Section 101 makes it clear that a work is "joint" when
the authors collaborate with each other or if each of the authors
prepared his or her contribution with the knowledge and intention
that it would be merged with the contributions of other authors as
"inseparable or interdependent parts of a unitary whole."
The House Report indicates that the touchstone is intention
at the time the writing is done.
The definition in section 101 is the first legislative
definition of a joint work. Section 201 establishes the validity
of joint ownership. The respective rights of the coowners, however,
are not spelled out. The legislative reports state that the new law
adopts the courtmade law on this point; that is, the coowners shall
have the right to free use of the jointly owned property, subject
only to the duty to account to one another for the profits.
[Note: the definition in section 101 overrules the decisions
in the "Melancholy Baby" (Shapiro Bernstein & Co., Inc.v. Jerry Vogel
Music Co., Inc., 161 F. 2d 406 (2d Cir. 1946) and "12th Street Rag"
(Shapiro Bernstein & Co., v. Jerry Vogel Music Co., 221 F. 2d 569 (2d
Cir. 1955) modified on rehearing, 223 F. 2d 25272d Cir. 1955))
cases. The test in these cases was "fusion of effort" rather than
intent at the time of the writing.]
- 5:2 -
OWNERSHIP-WORKS MADE FOR HIRE (Section 201(b))
In this subsection another principle of the 1909 Act is
adopted--that in the case of a work made for hire the employer is
considered the author and is regarded as the initial owner of copyright
unless there has been an agreement to the contrary. The definition
of a "work made for hire" in section 101, however, appears narrower
than the present case law.
A basic principle of American copyright law is that all
rights to a work produced by an employee within the scope of his
or her employment vest in the employer. This has been well established
by the courts and in section 26 of the 1909 law. The rationale for
this rule is that the work is produced under the employer's direction
and expense; also the employer bears the risks and should be entitled
to reap the benefits.
Works made on commission are those produced as the result
of a special order, rather than in the normal course of employment.
They are not mentioned in the 1909 law. In the cases concerning
these works, courts have generally recognized copyright ownership
in the party commissioning the work and not in the creator of the
work.
This subsection vests all copyright interests in the
employer in a work made for hire. It goes beyond the old law by
codifying the idea that the parties may agree otherwise as to copy-
right ownership. Such an agreement must be in writing and must
be signed by the parties. [NOTE: This section refers to "the
employer or other person for whom the work was prepared." "Other
person" apparently was included to make it clear that the person
who commissions a work which fits within the definition in section
101 of a work made for hire shall be regarded as the author.
In section 101 of the new law, the definition of a "work
made for hire" is divided into two sections. First, it says that it
is a "work prepared by an employee within the scope of his or her
employment." The second part is somewhat of a departure from previous
interpretations. As the House Report notes on page 121, the status of
works prepared on special order or commission was a major issue in
revision. This definition represents a carefully balanced compromise.
It spells out those specific categories of commissioned works that
can be considered "works made for hire" under certain circumstances.
The categories are:
- 5:3 -
1.
a contribution to a collective work
2.
part of a motion picture or other audiovisual
work
3.
a translation
4.
a supplementary work (which is defined as prepared
for publication as a secondary adjunct to a work
by another for purposes of illustrating, introducing,
concluding, etc., or assisting in the use of the
other work, such
as
forewards, afterwords, answer
material for tests, maps, musical arrangements,
bibliographies, etc.)
5.
a compilation
6.
an instructional text, which is defined as "a
literary, pictorial, or graphic work prepared
for publication with the purpose of use in
systematic instructional activities." (Thus,
books used in teaching.)
7.
a test
8.
answer material for a test
9. an atlas.
HOWEVER, this is conditioned upon an express agreement in writing
signed by the parties. This agreement must state that the work
"shall be considered a work made for hire."
CONTRIBUTIONS TO COLLECTIVE WORKS (Section 201(c))
This subsection seeks to clarify one of the most difficult
questions under the existing law--the ownership of contributions to
periodicals and other collective works. It states that copyright in
a contribution is separate and distinct from copyright in the collective
work as a whole, and that, in absence of an express transfer, the
owner of the collective work obtains only certain limited rights with
respect to each contribution.
- 5:4 -
The first sentence in this subsection provides that "Copy-
right in each separate contribution to a collective work is distinct
from copyright in the collective work as a whole, and vests initially
in the author of the contribution." This is intended to establish
that the copyright in a contribution and the copyright in the collective
work in which it appears are two different things, and that the
usual role with respect to initial ownership applies to the contribution.
Section 101 defines a "collective work" as "a work, such
as a periodical issue, anthology, or encyclopedia, in which a
number of contributions, constituting separate and independent works
in themselves, are assembled into a collective whole."
The second sentence in 201(c), in conjunction with section
404, preserves the author's copyright in his contribution without
requiring a separate notice in his name or an unqualified transfer of
all his rights to the publisher.
The new law establishes a presumption that, in the absence
of an express transfer, the author retains all rights except, "the
privilege of reproducing and distributing the contribution as part
of that particular collective work, any revision of that collective
work, and any later collective work in the same series."
Under this presumption, for example, an encyclopedia
pu'Aisher would be entitled to reprint an article in a revised
edition of an encyclopedia, and a magazine publisher would be
entitled to reprint a story in a later issue of the same periodical.
The privileges extended under the presumption, however, do not
permit revisions in the contribution itself or allow inclusion of the
contribution in anthologies or other entirely different collective
works.
DIVISIBILITY OF COPYRIGHTS (Section 201(d))
In theory, under the 1909 law, a copyright was considered a
single, indivisible bundle of exclusive rights. Thus, the old law
regarded copyright as a single, indivisible entity; this means that a
transfer of less than the entire rights to a work was merely a
license which allowed the holder to use the work in a specified way
but did not permit him to exercise any right of ownership.
- 5:5 -
This theory in practice is unworkable, and copyright
proprietors, with the sanction of the courts, have developed customs
and usages on the basis that copyright is divisible. Various subsidiary
rights have been created and marketed separately--e.g., magazine
rights, paperback rights, book club rights, motion picture rights,
foreign rights, etc. The copyright has also been licensed for a
period of time and/or for a particular territory.
Tension between theory and practice under the present
law has produced some strange and unjust results in those cases
where courts have not been able to accomodate copyright theory to
commercial reality.
Section 201(d)(2) contains the first explicit statutory
recognition of the principle of divisibility of copyright in U.S.
law. This provision was long sought by authors. It means that
any of the exclusive rights that go to make up a copyright, including
those listed in section 106 and any subdivision of them, can be
transferred and separately owned. The definition of "transfer
of copyright ownership" in section 101 makes it clear that the
principle of divisibility applies whether or not the transfer is
"limited in time or place of effect."
Note, too, that section 101 provides that the term "copyright
owner" refers to the owner of a particular right.
The granting of a non-exclusive license, however, does
not constitute a transfer of ownership, but only a right of usage.
_
The second sentence of 201(d)(2) provides that "The owner
of any particular right is entitled, to the extent of that right, to
all of the protection and remedies accorded to the copyright owner
by this title." Thus, an exclusive licensee would be given standing
to sue to protect that interest. This provision caused some concern;
some
felt that if ownership rights were split, a user might then be
liable to
a multiplicity of suits. The Justice Department raised
this issue in 1967. This problem is solved in section 501(b),
however, by setting certain limitations on the right to sue. It
gives the court discretion to require a notice to all interested
parties, and to order the joinder of any party whose interest might
be affected by an infringement proceeding.
- 5:6 -
TRANSFERABILITY
(Section 201(d)(1)) states the fundamental rule that
ownership of all or any part of a copyright is fully transferable
from one owner to another by any form of assignment or conveyance or
by operation of law, and that, upon the death of an owner is to be
treated as personal property.
The statement of this principle is supplemented by the
definition of transfer of ownership in section 101. The definition
is intended, among other things, to dispel any doubts as to whether
mortgages or other hypothecations, discharges of mortgages and
exclusive licenses come within the meaning of a "transfer of copyright
ownership."
INVOLUNTARY TRANSFERS (Section 201(e))
The legislative reports state that the purpose of this
section is to reaffirm the basic principle that the U.S. copyright of
an individual author shall be secured to that author, and cannot be
taken away by involuntary transfer. The intent is that the author is
entitled, despite any purported expropriation or involuntary transfer,
to continue
to
exercise all rights under the U.S. law, and specifically
that the governmental body or organization may not enforce or exercise
any rights in that situation.
DISTINCTION BETWEEN COPYRIGHTS AND MATERIAL OBJECTS
(Section 202)
The language in this section makes it clear that, unless an
author expressly transferred the rights in a particular work, the
sale of a material object (e.g., a manuscript or a painting) does not
carry with it the copyright in the work.
All this
section really says is that copyright is one
thing and the material object in which the work is embodied is
another; that ownership of one is distinct from ownership of the
other; that the transfer of ownership of one does not, in and of
itself, transfer ownership of the other.
EXECUTION OF TRANSFERS OF COPYRIGHT OWNERSHIP (Section 204)
This section retains the requirement that transfers of
copyright ownership be in writing and signed by the owner. The new
law allows the transfer to be signed either "by the owner of the
rights conveyed" or "by such owner's duly authorized agent."
- 5:7 -
Section 204 could have considerable impact since in the
new law unpublished works are placed under the federal statute and
thus subject to the above requirement, i.e., that all transfers be in
writing.
Subsection (b) broadens and liberalizes the provision
in the 1909 law regarding certificates of acknowledgment. It provides
that these certificates would be
prima facie
evidence of the executioa
of any domestic or foreign transfer (although they would not affect
the validity of a transfer).
RECORDATION OF TRANSFERS AND OTHER DOCUMENTS (Section 205)
The House Report states that section 205 is intended
to clear up a number of uncertainties arising from sections 30 and 31
of the 1909 law and to make the recording and priority provisions
more effective and practical.
Any "document pertaining to a copyright" may be recorded
if it bears the actual signature of the person who executed it
or is accompanied by a sworn or official certification that it
is a true copy. The House Report suggests rather strongly that
the Copyright Office will record self-serving or colorable documents
(page 128) and the Register is told to take care that their nature
is not concealed from the public in the office's indexing and search
reports.
Subsection (c) provides that recordation of a document
constitutes constructive notice (this is a conclusion of law that
cannot be contradicted) of the facts it states only if it meets
two requirements:
1.
it specifically identifies the work to which
it pertains so that after the document is indexed
by the Copyright Office, it would be revealed by
a "reasonable search" under the title or registration
number; and
2.
registration for the work has been made.
Subsection (d) requires a transferee to record his or
her instrument of transfer as a condition to bringing an infringement
suit, and thereby to place on public record the basis on which
ownership is claimed. This subsection also makes it clear that a
delay in making recordation until after an infringement has occured
will not affect the transferee's rights or remedies against the
infringer.
- 5:8 -
Subsection (e) resolves the priorities between conflicting
transfers, by retaining the current policy in favor of the initial
transfer, if properly recorded. It also retains the concept of a
grace period but shortens it to one month for documents executed in
the U.S. and 2 months for those executed abroad. This section also
makes a binding promise to pay royalties, a form of valuable consideration
and therfore repudiates the decision in Rossiter v. Vogel, 134 F.
2d 908 (2d Cir. 1943).
Subsection (f) provides that whether recorded or not, a
nonexeclusive license taken without notice of a prior unrecorded
transfer would be valid against the transferee, and an unrecorded
nonexclusive license would be valid as against a subsequent transfer.
- 6:1 -
CHAPTER SIX
TERMINATION OF TRANSFERS AND LICENSES
[Chapter 2, Section 203 and Chapter 3, Section 304(c)]
Section 24 of the old law embodies what is known as the
renewal provision. This section provided that copyright would
generally revert to the author, if living, or if the author were
not living, to other specified beneficiaries if a renewal claim
were registered in the 28th year of the original term. This pro-
vision was included in the 1909 Act to give authors a "second chance"
to reap the benefits of their creative efforts. In practice, however,
the second chance did not materialize because the author assigned
the contingent rights in the renewal term well before his or her
rights vested, and the assignee reaped the benefits of the renewal
term if the author survived until the renewal vested. Moreover,
failure to comply with the registration formality led to many for-
feitures.
It is generally acknowledged that during the early stages
of the revision effort, "the most explosive and difficult issue"
concerned a provision for protecting authors against unfair copyright
transfers. The aim was to protect authors against unremunerative
transfers and to get rid of the complexity, awkwardness, and unfairness
of the renewal provision. As both the House and Senate reports note,
the problem stems from the unequal bargaining position of authors and
from the impossibility of determining a work's value until it has
been exploited.
In 1965 representatives of publishers and authors met
and agreed on a proposal which became, in essence, section 203 of
the new law. This agreement essentially ended debate on the subject.
The sections covering termination rights are complex;
the majority of material is presented in a question and answer format
to make it more understandable.
WHAT MAY BE TERMINATED AND BY WHOM UNDER SECTION 203
What grants are covered?
Grants by the author (other than by will) of exclusive
or nonexclusive rights arising under the new law, but
not including works made for hire, may be terminated.
This applies only to grants made on or after January 1,
1978--there is no retroactive effect. [Note that transfers
made by an author's successors in interest are not covered.]
- 6:2 -
Who may terminate?
The author or, if he is deceased, a majority of owners
of his termination interest--i.e., widow or widower and
children or grandchildren may terminate. The key is
that those who own a total of more than one half of the
interest may exercise the right of termination. In works
of joint authorship, where the grant was signed by two or
more authors, a majority of those who signed it must join
to terminate.
TERMINATION AFTER AUTHOR'S DEATH (Section 203(a)(2))
In the case of an author who is dead, his or her termination
interest is owned and may be exercised by the following:
1.
Where author dies and only a widow or widower
survives and there are no children, then the
widow or widower owns the entire termination
interest.
2.
Where there is no widow or widower but there
are surviving children, then the children own the
entire termination interest.
3. Where both a widow or widower and a child or
children survive, then the widow or widower
own 50%, and the child or children own 50%.
[Note: The rights of the author's children
and grandchildren are, in all cases, divided
among them and exercised on a per stirpes basis
and the share of the children of a dead child, for
example, can be only exercised by a majority of
them. Per stirpes--when descendants take by
representation of their parent--i.e., child or
children take among them the share their parent
would have taken, if living.]
An example is given on page 125 of the House Report. A
deceased author leaves a widow, two living children, and three
grandchildren by a third child who is dead.
- 6:3 -
Widow gets 50% and the children of the author will
divide 50%. Each of the three children would be
entitled to 16 2/3% but Child 3 is dead. Per stirpes
means that the three offspring of Child 3 will share
Child 3's share. Thus, each of the three grandchildren
get about 5 1/2%.
As the example points out, the widow is a necessary
party in termination because she owns 50%. To get
the majority she can be joined by either Child 1
or Child 2. But if neither join her she must get a
majority of the grandchildren. Thus, even though
the widow and one grandchild would own 55 1/2%,
they would have to be joined by another child or
grandchild to effect a termination or make a further
transfer of reverted rights.
WHEN AND HOW TERMINATION IS EFFECTED (Section 203(3))
When may termination be effected?
Termination may be effected during the five years
beginning at the end of 35 years from the date of the
grant, or, if the grant covers the right of publication,
35 years from the date of publication or 40 years from
the date of the grant, whichever is shorter.
How may termination be effected?
Termination may be effected by serving a written
notice no less than two nor more than ten years
before termination is to take effect. Notice must
comply with Copyright Office regulations and a copy
of the notice must be recorded in this Office before
the effective date of the termination.
Two examples from the House Report are:
1. Contract for theatrical production signed on
September 2, 1987. Termination of grant can
be made to take effect between September 2, 2022
(35 years from execution) and September 1, 2027
(end of 5-year termination period). Assuming
author decides to terminate on September 2, 2022
the advance notice must be filed between September 2,
2012 and September 2, 2020.
- 6:4 -
2. Contract for book publication executed on April 10,
1980; book finally published on August 23,
1987. Since contract covers the right of publication,
the 5-year termination period would begin on April 10,
2020 (40 years from execution) rather than
April 10, 2015 (35 years from execution) or
August 23, 2022 (35 years from publication).
Assuming that author decided to make the termination
effective on January 1, 2024, the advance notice
would have to be served between January 1, 2014
and January 1, 2022.
THE EFFECT OF TERMINATION
All rights revert to those with a right to terminate except
that derivative works prepared before termination may
continue to be utilized under the terms of the grant.
Rights revert to everyone who owns termination interests on
the date the notice was served, whether they joined in
signing or not.
Rights vest on the date that the notice is served. If
beneficiary dies, his heirs would inherit his or her share.
In addition, the law provides that a further grant or
agreement to make a further grant of any right covered by a terminated
grant is valid only if it is signed by the same number and proportion
of owners, in whom the right has vested..., as are required to terminate
the grant.
Section 203(b)(3).
Moreover, such further grant or agreement is valid only
if made after the effective date of termination, except that a
new transfer to the original grantee or his successor may be made
after the notice of termination is served. Section 203(b)(4). In
effect this gives the original grantee or his successor a right of
first refusal and a preference over others since such grantee or
successor may have a two to ten year lead time in dealing for the
rights.
[NOTE: Section 203(a)(5) provides that "termination of
the grant may be effected notwithstanding any agreement to the
contrary, including an agreement to make a will or to make any future
grant.]
TERMINATIONS OF TRANSFERS AND LICENSES COVERING THE
EXTENDED RENEWAL TERM (Section 304(c))
What grants are covered?
Grants made by the author or grants executed by
those beneficiaries of the author who could claim
renewal under the present law may be terminated. Only
grants covering the renewal copyright and only grants
made prior to January 1, 1978 are covered. There are
no termination rights in works made for hire.
- 6:5 -
Who may terminate?
The author, or if he or she is deceased, his family
may terminate. The shares are the same as spelled
out earlier under section 203.
When may termination be effected?
Termination may be effected during a five-year period
which begins at the end of 56 years from the date
copyright was originally secured, or on January 1, 1978,
whichever is later.
How may termination be effected?
Termination may be effected by serving a written
notice upon the grantee or the grantee's successor in
title. Where grant is executed by a person or persons
other than the author, all of those who executed the
grant and survive, or their duly authorized agents,
must sign the notice. Notice must comply with Copyright
Office regulations. A copy of the notice must be
recorded in the Copyright Office before the effective
date of termination.
What is the effect of termination?
All rights revert to those with a right to terminate
except that derivative works prepared before termination
may continue to be utilized under the terms of the
grant. No new derivative works may be prepared after
the effective date of termination. Termination rights
vest on the date the notice is served.
NOTE: Some works will not be subject to any termination
rights. Section 304(c) applies only to grants made
prior to January 1, 1978 and section 203 applies only
to grants made on or after that date. Section 203
termination rights apply only to grants made by the
author, and works made for hire are not subject to
termination.
- 6:6 -
Examples:
1.
A publishing company, on July 1, 1977, makes a contract
with Norbert Novelist for a new book. The book is
not written until July 20, 1979. The rights transferred
in the July 1, 1977 contract would not be subject
to termination. The grant was made before January 1,
1977 but not for a work in which copyright was subsisting
on the effective date of the new law.
2.
An author writes book in 1970; the work is never published
and no rights in the work were assigned during the
author's lifetime--author died in August of 1980. In
June of 1981 the author's widow of grants a publishing
company certain rights. Those rights are not subject
to termination. Only section 203 can apply and that
section is limited to grants made by the author.
- 7:1 -
CHAPTER SEVEN
SCOPE OF THE EXCLUSIVE RIGHTS ACCORDED COPYRIGHT OWNERS
[Chapter I, section 106]
The section setting forth the exclusive rights of the
copyright owner is the heart of any copyright law. This section
determines the limits of protection granted to authors and their
successors in interest.
As the 1965 Supplementary Report of the Register states,
"in a narrow view, all of the author's exclusive rights translate
into money: whether he should be paid for a particular use or
whether it should be free." This Report also notes that "[t]he
basic legislative problem is to insure that the copyright law provides
the necessary monetary incentive to write, produce, publish, and
disseminate creative works, while at the same time guarding against
the danger that these works will not be disseminated and used as
fully as they should because of copyright restrictions."
The drafters of the new law took particular pains not
to confine the scope of an author's rights on the basis of the
present technology. Thus, the exclusive rights of an author
are stated in broad terms.
Section 106 grants five basic and exclusive rights. The
right to display a work publicly is specifically stated for the first
time. Detailed limitations and exemptions follow in sections 107
through 118; these sections, therefore, must always be read in
conjunction with section 106.
The House Report notes that the rights in section 106
are cumulative and to some extent overlap. For example, the preparation
of a derivative work would usually also involve its reproduction.
The rights stated may be subdivided without limitation.
Each subdivision of an exclusive right may be owned and enforced
separately (section 201(d)(2)).
Reproduce the copyrighted work in copies or phonorecords
The right to reproduce the work is the most fundamental
right granted by any copyright law. The terms "copies" and "phono-
records" include the first or original embodiment of the work (the
prototype), as well as any other objects from which the work can be
"perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device."
- 7:2 -
Prepare derivative works
The right to prepare new versions of copyrighted works is a
valuable one, and its existence permits the copyright owner to
control uses of his work that might not otherwise be included in the
reproduction. A derivative work is defined in section 101 as a work
based upon on or more preexisting works such as a translation,
musical arrangement, dramatization, fictionalization, motion picture
version, sound recording, art reproduction, abridgment, condensation,
or any other form in which a work may be recast, transformed, or
adapted.
Public distribution
This right includes distribution by sale, gift, or other
transfer of ownership of the material object embodying the work,
or by rental, lease, or lending the material object. The exclusive
right to sell a copyrighted work is terminated on the first authorized
sale, and a copyright owner is not permitted to control future
disposition of sold copies of the work. This is made clear by
section 109 which draws a basic distinction between the rights
of a copyright owner and the rights of someone who owns a physical
object (a copy or phonorecord) that embodies a copyrighted work.
Section 109 states that once a copy or phonorecord has been lawfully
made, it can be disposed of by its owner without the copyright
owner's permission.
Public performing right
For certain kinds of works, the right of public performance
has become the most important. The right of public performance
under 106(4) extends to "literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works;"
there is no such right for sound recordings.
Unlike the present law, this right is not limited by
any "for profit" requirement. There are, however, a number of
exemptions and limitations in sections 107 through 118.
The exclusive right of public performance has been expanded
to include motion pictures and other audiovisual works. Performance
of an audiovisual work means to show the images in any sequence
and to make any sounds accompanying the work audible. The House and
Senate Reports state that the showing of portions of motion pictures,
filmstrips, or slide sets sequentially will constitute a "performance"
rather than a "display."
- 7:3 -
Under the definition of "perform" in section 101 it is
clear that the following would constitute a performance of a work:
live renditions that are face to face, renditions from recordings,
broadcasting, retransmission by loudspeakers, and transmission and
retransmissions by cable, microwave, etc. To perform publicly is
defined as performing at a place open to the public or at a place
where a substantial number of persons outside of a normal circle of a
family and its social acquaintances is gathered.
Right
of
public display
This is the only right granted under the new law whose
existence is open to question under the old law.
By definition (section 101) to "display" a work means
to show a copy of it, either directly or by means of a film, slide,
television image, or any other device or process or, in the case of a
motion picture or other audiovisual work, to show individual images
nonsequentially. Thus, subject to the limitations imposed by
section 109, the right of public display applies to any work embodied
in manuscript or printed matter and in pictorial, graphic, and
sculptural works, including "stills." Exhibition of a motion picture
or other audiovisual work as a whole is a performance rather than a
display.
Section 109(b) states that the owner of a lawfully-made
copy can display it publicly to viewers present at the
same place
as the
copy.
Thus, the exclusive right of public display would
not apply where the owner of a copy wishes to show it directly
to the public, as in a gallery or display case, or indirectly through
an opaque projector.
- 8:1 -
CHAPTER EIGHT
FAIR USE AND OTHER LIMITATIONS AND EXEMPTIONS
ON EXCLUSIVE RIGHTS
[Sections 107, 108, 110, 112]
FAIR USE (Section 107)
Although fair use (a doctrine developed by the courts)
was not included in any copyright statute prior to the 1976 Act,
the concept is firmly established in everyday usage. The concept
of "fair use" is not susceptible to exact definition. Generally
speaking, however, it allows copying without permission from, or
payment to, the copyright owner where the use is reasonable and not
harmful to the rights of the copyright owner.
Section 107 is somewhat vague since it would be difficult
to prescribe precise rules to cover all situations. It refers to
"purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research" and sets out four factors to be considered in determining
whether or not a particular use is fair. These are:
1.
The purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
2.
The amount and substantiality of the portion used in
relation to the copyrighted work as a whole;
3.
The nature of the copyrighted work; and
4.
The effect of the use upon the potential market for
or value of the copyrighted work.
These criteria are not necessarily the sole criteria that a court
may consider. Section 107 makes it clear that the factors a court
shall consider shall "include" these four; section 101, the definitional
section of the new law, states that the terms "including" and "such
as" are illustrative and not limitative.
- 8:2 -
The legislative reports state that section 107 as drafted is
intended to restate the present judicial doctrine; it is not intended
to change, narrow or enlarge it in any way.
One thing is clear--the language of section 107 does not
provide specific tests by which one can determine with much certainty
whether or not a particular use is fair. The difficulty of arriving
at a clear-cut definition is inherent in the nature of the doctrine.
The House and Senate Reports state:
Although the courts have considered and ruled upon
the doctrine of fair use over and over again, no real
definition of this concept has ever emerged. Indeed,
since the doctrine is an equitable rule of reason,
no generally applicable definition is possible, and
each case raising the question must be decided on its own
facts.
Under these circumstances the various interest groups tried
to work out some compromises. Three different educational groups,
dealing respectively with copying for teacher and classroom use of
print materials, photocopying of music, and audiovisual presentations
met separately with authors' and publishers' organizations to work out
guidelines. These efforts were successful in the music and print
field. No agreement was reached on audiovisual works although attempts
are still being made to resolve this issue.
The guidelines for books and periodicals appear in Appendix
3. They may be briefly summarized as covering: (1) single copies for
teachers, (2) multiple classroom copies, and (3) prohibitions. Multiple
classroom copying cannot exceed the number of pupils per class, must
meet strict tests of brevity, spontaneity and noncumulative effect, and
must include a notice of copyright.
The prohibitions include:
1.
the copies may not be used as a substitute for
anthologies, compilations or collective works;
2.
copies cannot be made of consumable material
such as work books;
3.
the copies cannot be a substitute for purchases,
be "directed by higher authority" or be repeated
by the same teacher from term to term; and
4.
there can be no charge to the student beyond the
actual copying cost.
- 8:3 -
The music guidelines follow much the same pattern. They
allow emergency copying to
replace
previously purchased copies for
use in an immediate performance. Copying of excerpts of no more
than 10% of the whole work is allowed for academic purposes other
than performance. The excerpts cannot constitute a performable unit
such as a section, movement or aria. Editing and simplifying
purchased works is allowed as is the production of single copies of
certain sound recordings for certain educational purposes.
Both sets of guidelines state that they constitute the minimum
and not the maximum standards of educational fair use under section 107.
They also state:
The parties agree that the conditions determining the
extent of permissible copying for educational purposes
may change in the future; that certain types of copying
permitted under these guidelines may not be permissible
in the future; and conversely that in the future other
types of copying not permitted under these guidelines
may be permissible under revised guidelines....There may
be instances in which copying which does not fall within
the guidelines stated.. .may nonetheless be permitted
under the criteria of fair use.
The House Report states that the Judiciary Committee believes
that the guidelines are a reasonable interpretation of the minimum
standards of fair use. It notes that teachers will know that copying
within the guidelines is fair use and that the guidelines, therefore,
serve the purpose of fulfilling the need for greater certainty and
protection for teachers. The Rouse and Senate conferees accepted
these guidelines as part of their understanding of fair use.
The problem of off-the-air taping for nonprofit use was
left unresolved. The House Report states that the doctrine of
fair use has some limited application in this area. The Senate
Report, on the other hand, states that, "The committee does not
intend to suggest however, that off-the-air taping for convenience
would under any circumstances be considered 'fair use.'"
- 8:4 -
Certain non-educational materials receive attention in
the legislative reports as well. In speaking of independent news-
letters which are particularly vulnerable to mass photocopying practices,
both the House and Senate Reports call for a narrower interpretation
of fair use than might be applied to mass-circulation periodicals.
The legislative reports also state the belief that in the
case of calligraphers, a single copy reproduction of an excerpt
from a copyrighted work for a single client "does not represent an
infringement of copyright."
REPRODUCTION BY LIBRARIES AND ARCHIVES - (Section 108)
Section 108 deals with a variety of situations involving
photocopying and other forms of reproductions by libraries and archives.
Subsection (a) provides that "...it is not an infringement of copyright
for a library or archives, or any of its employees acting within the
scope of their employment, to reproduce no more than one copy or
phonorecord of a work, or to distribute such a copy or phonorecord,
under the conditions specified by this section if--
1.
the reproduction or distribution is made without
any purpose of direct or indirect commercial
advantage;
2.
the collections of the library or archives are (i)
open to the public, or (ii) available not only to
researchers affiliated with the library or archives or
with the institution of which it is a part, but also
to other persons doing research in a specialized field;
and
3. the reproduction or distribution of a work includes a
notice of copyright."
Thus, (a) lays out the basic conditions under which a library or
archives can claim an exemption. But this is only the beginning--for
library activity to be exempt it must also qualify under one of the
conditions laid out in subsections (b) through (f), must not run
afoul of subsection (g), and must involve copying of a work that is
not mentioned in subsection (h).
- 8:5 -
(b)
Archival
preservation--this exemption applies only
to unpublished works in the current collection of a library or archives.
It allows reproduction only in facsimile form, and only for "purposes
of preservation or security or for deposit for research use in another
library or archives."
(c)
Replacement--libraries or archives are authorized to
duplicate a published work in facsimile form solely for the purpose
of replacement of a copy or phonorecord that is damaged, deteriorating,
lost or stolen but only if it finds that an unused replacement copy
cannot be obtained at a fair price. The legislative reports offer some
guidance as to what is meant--they indicate that a reasonable investigation
will always require recourse to commonly known trade sources in the
United States, and in the normal situation also to the publisher or
copyright owner or an authorized reproducing service.
(d)
Journal articles, small excerpts,
etc.--This subsection
applies to "no more than one article or other contribution to a copy-
righted collection or periodical issue, or to...a small part of any
other copyrighted work." The only conditions for supplying a reproduction
are that "the copy becomes the property of the user;" there is no
reason to suppose that it "would be used for any purposes other than
private study, scholarship,
or research;"
and the library or archives
must display prominently, at the place were orders are accepted, a
warning of copyright. The institution must also include a warning to
be prescribed by a Copyright Office regulation on its order form.
(e)
Entire works
or
substantial
parts--With one addition,
the conditions applicable under subsection (d) apply under subsection
(e) to "the entire work," or "a substantial part of it." The added
condition is that "the library or archives has first determined,
on the basis of a reasonable investigation, that a copy or phonorecord
of a copyrighted work cannot be obtained at a fair price."
(f)
General exemptions--this
subsection contains four
clauses aimed at precluding certain interpretations
of section 108.
(1) The first clause makes clear that no liability
attaches to a library or its staff for "unsupervised
use of reproducing equipment located on its premises,"
as long as a copyright warning is posted on the
machine.
- 8:6 -
(2)
Conversely, the second clause provides that the
individual user of the reproducing equipment
is not insulated from liability if the reproduction
exceeds fair use, and the same is true if the
library is asked to make the copy for the individual.
(3)
The third clause, which was added to the section
during the floor debates in the Senate in September,
1974, reflects the controversy over the videotape
archive of news programs at Vanderbilt University.
It states that nothing in section 108 "shall be
construed to limit the reproduction and distribution
of a limited number of copies and excerpts by
a library or archives of an audiovisual news
program...."
The intent is to permit libraries and archives
to make off-the-air videotape recordings of
daily network newscasts for limited distribution
to scholars and researchers. The House Report
notes that it is an adjunct to the American Television
and Radio Archive established in Section 113 of the
Transitional and Supplementary Provisions.
The House Report notes that this section does
not apply to documentaries, magazine format or
other public affairs broadcasts dealing with
subjects of general interest to the viewing public.
The report also states that this material is to be
distributed only by lending. Performance, copying,
or sale, whether or not for profit, by the recipient
of a copy of a television broadcast taped off the
air, is forbidden.
(4) The fourth clause is important. It declares
that nothing in section 108 "in any way affects the
right of fair use as provided by section 107."
It also provides that the right of reproduction
granted by section 108 does not override any
contractual arrangements assumed by a library
or archives when it obtained the work for its
collections.
- 8:7 -
(g) Multiple and systematic copying--This subsection was
one of the most controversial. It states that the rights of repro-
duction and distribution under section 108 extend to the "isolated
and unrelated" reproduction or distribution of a single copy or
phonorecord of the same material on separate occasions; they do not
cover related or concerted multiple copying, even when done over a
period of time for different users.
The exact language is: "that the rights under section
108 do not extend to cases where the library or archives, or its
employees:
(1)
is aware or has substantial reason to believe that
it is engaging in the related or concerted reproduction
or distribution of multiple copies or phonorecords
of the same material, whether made on one occasion or
over a period of time, and whether intended for aggregate
use by one or more individuals or for separate use
by
the individual members of a group; or
(2)
engages in the systematic reproduction or distribution
of single or multiple copies or phonorecords of materials
described in subsection (d) [an article or contribution
to a periodical or copyrighted collection or a small
part of any other copyrighted work]: PROVIDED, That
nothing in this clause prevents a library or archives
from participating in interlibrary arrangements that do
not have, as their purpose or effect, that the library
or archives receiving such copies or phonorecords for
distribution does so in such aggregate quantities as to
substitute for a subscription to or purchase of such
work."
The National Commission on New Technological Uses of Copyrighted
Works (CONTU) developed, with the assistance of representatives
of library organizations and authors and publishers, a set of guide-
lines on interlibrary arrangements which were incorporated into the
Conference Report. However, in the report the conferees stated:
"...the guidelines are not intended as, and cannot be
considered, explicit rules or directions governing
any and all cases, now or in the future. It is recognized
that their purpose is to provide guidance in the most
commonly-encountered interlibrary photocopying situations,
that they are not intended to be limiting or determinative
in themselves or with respect to other situations, and
that
they
deal with an evolving situation that will
undoubtedly require their continuous reevaluation and
adjustment."
- 8:8 -
Part of this reevaluation process will be the requirement
in section 108(i) that the Register of Copyrights, five years after
the effective date of the new Act, and at five-year intervals there-
after, issue reports on the extent to which section 108 has achieved
the intended balancing of the rights of the creators and the needs
of users. The guidelines themselves call for a five-year review
also.
[NOTE: the CONTU guidelines are limited to one of the
most frequent interlibrary loan practices--the making of copies of
articles from periodicals whose issue dates are less than five years
old. The question of guidelines or interpretations of making copies
from articles more than five years old is left to future interpretation.
Note, too, that the focus of the guidelines is on the requesting
library rather than on the one which fills the orders.]
(h) Material not covered--This subsection narrows the
scope of subsections (d) and (e) to exclude musical works, pictorial,
graphic, and sculptural works, and audiovisual works (other than
television news programs) from the reproduction privileges set
out therein.
The exclusions under (h) do not apply to archival reproduction
under (b); or to replacement of damaged or lost copies under (c); or to
"pictorial or graphic works published as illustrations, diagrams, or
similar adjuncts to works of which copies are reproduced or distributed
in accordance with subsections (d) and (e)."
It is important to remember that the doctrine of fair
use remains fully applicable under section 107 to musical works,
pictorial, graphic and sculptural works and audiovisual works.
[NOTE: the Conference Report deals with the interpretation of
"indirect commercial advantage" as used in section 108. With regard
to libraries which are connected with industrial, profit-making, or
proprietary institutions it says, "[a]s long as the library or archives
meets the criteria in section 108(a) and the other requirements of
the section, including the prohibitions against multiple and systematic
copying in subsection (g), the conferees consider that isolated,
spontaneous making of single photocopies by a library or archives in
a for-profit organization without any commercial motivation, or
participation by such a library in interlibrary arrangements, would
come within the scope of section 108."]
- 8:9 -
EXEMPTIONS OF CERTAIN PERFORMANCES AND DISPLAYS-(Section 110)
The general rights of public performance and display
which are enunciated in clauses (4) and (5) of section 106 (see
Chapter 7) are made subject to nine specific limitations in section
110. This section exempts the following types of public performances
from copyright liability under specified conditions:
(1)
face-to-face teaching activities;
(2)
instructional broadcasting (broadcasts that are
essentially an adjunct to actual classwork of educational
institutions as opposed to public broadcasts which are
of a cultural or educational nature and directed to the
public at large);
(3)
religious services;
(4)
live performances without commercial advantage to
anyone;
(5)
mere reception of broadcasts in a public place;
(6)
annual agricultural and horticultural fairs;
(7)
public performance in connection with sale of records
or sheet music;
(8)
noncommercial broadcasts to the blind or deaf;
(9) nonprofit performances of dramatic works transmitted
to the blind by radio subcarrier.
As the legislative reports note, clauses (1) through (4) deal with
performances and displays that were generally exempt under the
"for profit" limitation or other provisions of the 1909 law.
(1)
Face-to
face
teaching activities--This
sets out the
conditions under which performances or displays, in the course
of instructional activities other than broadcasting, are to be
exempt from copyright control. This clause covers all types of
works.
- 8:10
To be exempt, the performance or display must be by a
pupil or an instructor which would generally mean a teacher but it
is intended to be broad enough to cover, for example, a guest
lecturer. Performance by actors, singers or musicians brought
in from outside would not be exempt.
"Face-to-face" was inserted to exclude broadcasting or
other transmissions, whether radio or television, or open or closed
circuit, from an outside location into a classroom. The exemption
does, however, extend to the use of devices for amplifying or reproducing
sound and for projecting visual images, as long as instructors and
students are in the same building or general area.
"Teaching activities" is intended to mean systematic
instruction; it would not include performances or displays that are
given for the recreation or entertainment of any part of the audience.
This is true even though the work performed or displayed has great
cultural or intellectual appeal.
The phrase "classroom or similar place" limits the exemption
to places devoted to instruction. The legislative reports indicate
that such a place might be a studio, workshop, gymnasium, or library
as long as it actually is used as a classroom for systematic instructional
activities. Performances in an auditorium for a school assembly,
a graduation exercise, etc. would be outside the scope of this
exemption because the audience is not confined to members of a
specific class, although they might be exempted under other provisions
of section 110.
(2) Instructional broadcasting--This covers broadcasting
which is an adjunct to the actual classwork of educational institutions;
it exempts "the performance of a nondramatic literary or musical work
or display of a work by or in the course of transmission" if three
conditions are met. The first is that the performance or display
must be a "regular part of the systematic instructional activities of
a governmental body or a nonprofit educational institution." The
second is that "the performance or display is directly related and of
material assistance to the teaching content of the transmission."
The third is that the transmission must be made "primarily" for:
"(i) reception in classrooms or similar places normally devoted to
instruction; or (ii) reception by persons to whom the transmission is
directed because of their disabilities or other special circumstances
prevent their attendance in classrooms or similar places normally
devoted to instruction; or (iii) reception by officers or employees
of governmental bodies as part of their official duties or employment."
- 8:11 -
Only performances of nondramatic literary or musical
works would be exempt. The performance of a dramatico-musical work
such as an opera or musical comedy, or a motion picture or other
audiovisual work could occur lawfully only if the copyright owner's
permission had been obtained.
With respect to exhibitions, the exemption would
apply to any type of work which the right "to display...publicly"
under section 106(5) applies (see Chapter 7).
The reports indicate that "systematic instructional
activities" is intended as the general equivalent of "curriculums"
but that it could be broader in certain cases.
The term "educational institution" was used because
it is broad enough to cover a wide range of establishments engaged
in teaching activities. It is not supposed to cover, however,
"foundations," "associations," etc. who are not primarily and
directly engaged in instruction.
110(2) ties in with section 112(b) (see below) which
represents a response to instructional broadcasters' requests for
special recording privileges. It permits a nonprofit organization
that is entitled to transmit a performance or display of a work
under section 110(2) to make not more than 30 copies or phonorecords
and to use the "ephemeral recordings" for transmitting purposes
for not more than seven years after the initial transmission.
Thereafter, only one copy or phonorecord may be preserved exclusively
for archival purposes.
(3) Religious services--This covers performances of a
nondramatic literary or musical work and also performances of
dramatico-musical works "of a religious nature" and displays of all
kinds. This exemption only applies to performances and displays "in
the course of services at a place of worship or other religious
assembly." This clause does not cover the sequential showing of
motion pictures and other audiovisual works.
The House Report indicates that oratorios, cantatas,
and musical settings of the mass are covered by the exemption, but
that secular operas, musical plays, motion pictures and the like,
even if they have an underlying religious or philosophical theme and
take place in the course of a religious service, are not.
- 8:12 -
This exemption would not extend to religious broadcasts
or other transmissions to the public at large.
(4)
Certain other nonprofit performances--This
clause
provides that the noncommercial performance of a nondramatic literary
or musical work other than in an transmission to the public is
generally exempt from copyright liability if no compensation is paid
to its performers, promoters or organizers. If, however, proceeds
are derived through a direct or indirect admission charge for exclusively
educational, religious, or charitable purposes, then the copyright
owner is given a chance to serve a notice of objection concerning the
performance.
To prevent the performance, the notice must be in
writing and be signed by the copyright owner or his duly authorized
agent, must be served on the person responsible for the performance
at least seven days prior to the performance, and must state the reason
for the objection. Also, the notice must comply in form, content and
manner of service with regulations the Copyright Office is to promulgate.
(5)
Mere
reception
in public--This clause applies to all types
of works. Its basic purpose is to exempt from liability anyone who merely
turns on, in a public place, an ordinary radio or television of a kind
commonly sold to the public for private use. This clause is not supposed
to have anything to do with cable systems; moreover, the exemption would be
denied in any case where the audience is charged directly to see or hear
the transmission.
[NOTE: with respect to
Twentieth Century Music Corp
v.
Aiken,
422 U.S. 151 (1975), the House Report states that this fact
situation represents the outer limit of the exemption and believes
that the line should be drawn at this point. (Aiken had a small
business and used a home receiver with four ordinary loudspeakers
grouped within a relatively narrow circumference from the set. A
proprietor of a small commercial establishment who brings standard
home equipment to the premises and plays it for the enjoyment of the
customer would fall within the exemption. If the equipment were of a
commercial nature, then liability would be imposed. In making this
determination, the House Report indicates that factors to consider
are the size, physical arrangement and noise level of the areas within
the establishment where the transmissions are made audible or visible,
and the extent to which the receiving apparatus is altered or augmented
for the purpose of improving aural or visual quality of the performance
for the public.
(6)
Agricultural
Fairs--This clause exempts "performance
of a nondramatic musical work by a governmental body or a nonprofit
agricultural or horticultural organization, in the course of an
annual agricultural or horticultural fair or exhibition conducted by
such body or organization."
This clause makes it clear that only the governmental
body or nonprofit organization sponsoring the fair is covered.
Concessionaires have no exemption under this clause.
- 8:13 -
(7)
Retail sale of phonorecords--This provision allows
the performance of a nondramatic musical work or of a sound
recording
by
a vending establishment open to the public at large without
any direct or indirect admission charge, where the sole purpose of
the
performance is to promote the retail sale of copies or phono-
records of the work.
(8)
and (9) Transmissions for the blind and other handicapped
persons--Subsection (8) provides an exemption for the performance of a
nondramatic literary work. To qualify, a broadcast must be specifically
designed for, and directed to, blind or other sight or hearing impaired
persons; must be made without any purpose of direct or indirect commercial
advantage;
and be
broadcast through the facilities of
either:
a)
a governmental body;
b)
a noncommercial educational broadcast station;
c)
a radio subcarrier authorization; or
d)
a cable system.
Clause (9) exempts nonprofit performances of dramatic works transmitted
to audiences of the blind by radio subcarrier authorization, but
only for a single performance of a dramatic work published at least
ten years earlier.
EPHEMERAL RECORDINGS - (Section 112)
Ephemeral recordings are "copies or phonorecords of a
work made for purposes
of later transmission by a
broadcasting
organization legally entitled to transmit
the work." Thus, an
ephemeral recording is a tape or
phonorecord of a work made by a
broadcaster who either by license of the copyright owner or exemption
in
the statute has the right to perform a work, but not necessarily
the right
to make copies. Without an ephemeral recording right, the
broadcaster who may have secured a license to perform a copyrighted
work on radio or television would not be able to tape the performance
of the work.
The new copyright law distinguishes between a broadcaster
who acquires a license to transmit a work and an instructional
broadcaster who is exempt under section 110(2).
- 8:14 -
Under 112(a) a licensed broadcaster is allowed to make one
of a program
provided that the copy is retained and used only by
tho transmitter who made it and used only within that transmitter's
normal transmission area. Additionally, the broadcaster is required
to either destroy the copy within six months or use it exclusively
for archival purposes. Motion pictures and other audiovisual works
are not included in this exemption.
112(b) covers recordings for instructional transmissions.
It permits a nonprofit organization that is free to transmit a per-
formance or display under 110(2) or 114(a) to make not more than 30
copies or phonorecords and to use the ephemeral recordings for
transmitting purposes for not more than seven years after the initial
transmission.
(NOTE: there is no reproduction privilege for motion
pictures or other audiovisual works. 110(2) covers only nondramatic
literary and musical works and displays of all types of works.]
It is important to realize that ephemeral recordings
made
by
instructional broadcasters are in fact audiovisual works that
often compete for the same market. As the reports indicate, it is
unfair to allow instructional broadcasters to reproduce multiple
copies of films and tapes, and to exchange them with other broadcasters
without paying any copyright royalties; this was considered to
injure the market of producers of audiovisual material who pay
substantial fees to authors for the same uses.
This was the main
reason why limitations were placed on this exemption.
112(c) covers religious broadcasts. This clause states
that "it is not an infringement for a government or nonprofit organization
to
make no more than one copy
or phonorecord for each transmitting
organization of a particular transmission program embodying a
performance of a nondramatic musical work of a religious nature or a
sound recording of such musical work" if: (1) there is no charge; (2)
there is no use other than a single transmission by a transmitting
organization entitled to transmit to the public under a license or
transfer of copyright (in plain English--a broadcasting station); and
3) one copy only is kept for archival purposes. All other copies are
to be destroyed within one year from the date the transmission
was first transmitted to the public.
The case made by the religious program producers before
Congress was that they are producing a nonprofit broadcast and
are merely using the convenience of tape or disc rather than long
lines because it is cheaper to do so in this manner.
- 8:15 -
112(d) grants an ephemeral recording right to transmissions
to handicapped audiences. This subsection ties in with 110(8).
112(e) covers the copyright status of ephemeral recordings.
It provides that ephemeral recordings are not to be copyrightable as
derivative works except with the consent of the owners of the copy-
righted material employed in them.
LIMITATIONS ON EXCLUSIVE RIGHTS IN SOUND RECORDINGS (Section 114(b))
An exception to the exclusive rights in sound recordings
granted in section 106 is that permission is not needed to use
sound recordings in educational television and radio programs distri-
buted or transmitted by or through public broadcasting entities as
long as phonorecords of such programs are not commercially distributed
by or through such entities to the public.
The rights in sound recordings are also limited by certain
portions of sections 108 and 112 and of course by the doctrine of
fair use, section 107.
- 9:1 -
CHAPTER NINE
THE COMPULSORY LICENSES AND THE COPYRIGHT ROYALTY TRIBUNAL
[Sections 111, 115, 116, 118 and Chapter 8]
SECONDARY TRANSMISSIONS (Section 111)
Section 111 covers the complex and economically important
problem of "secondary transmissions." For the most part this section
is directed at the operation of cable systems and the terms and
conditions of their liability for the retransmissions of copyrighted
works. It does, however, consider other forms of secondary transmission
including apartment house and hotel systems, common carriers, and
secondary transmissions of primary transmissions to controlled
groups. Subsection (f) contains the definitions of the operative
terms--e.g., "primary transmitter" and "secondary transmitter."
Cable television systems are commercial subscription
services which pick up broadcasts of programs originated by others
and retransmit them to paying subscribers. A typical system consists
of three sections: the head end section, which is the point where
the signal is introduced into the system; the trunk line section,
which brings the signal from the head end to the local community;
and the distribution system, which carries the signal from the
trunk line to the various subscribers' homes. In an area where
off-the-air reception is poor (e.g., where there is hilly terrain)
the cable system may use microwave to bring TV signals to the head
end. A growing number of cable systems also originate programs, such
as movies and sports, and charge additional fees for this service
(pay cable).
Subsection (c) establishes a compulsory license for cable
systems. Generally it allows the retransmission of those over-the-air
broadcast signals that a cable system is authorized to carry pursuant
to the rules and regulations of the FCC. This license, however, is
conditioned on compliance with the reporting and filing provisions
of
the law, payment of the royalties due, etc. The rationale for this
provision is that Congress believed that cable systems are commercial
enterprises whose basic retransmission operations are based on the
carriage of copyrighted program material. Congress believed that
royalties should be paid by cable operators to the creators of such
programs; but Congress recognized that it would be too burdensome and
impractical to require every cable system to negotiate with every
copyright owner.
- 9:2 -
,
Basic Principles of the Compulsory License:
1.
A cable system's retransmission is clearly a public
"performance" of the copyrighted work.
2.
As long as a cable operator is authorized by his
FCC license to carry a particular signal, he is entitled to rely on
the "compulsory license" with respect to the copyrighted material
carried by the signal.
3.
The new law makes distinctions between cable retransmission
of local and distant signals and between cable carriage of network
and non-network programming. Congress believed that the retransmission
of local signals, essentially those already available over-the-air in
the cable system's community, did not economically injure copyright
owners since they were compensated for use of their programs in
the local markets under their broadcast licenses. Congress also
concluded that retransmission of network programming, whether local or
distant, did not injure the copyright owner. The owner would be
adequately compensated under its contract with the network. Payment
in this situation is generally based on reaching all markets served
by the network by any means. Congress did, however, find that the
retransmission of
distant non-network
programming would damage
the copyright owner. Where a cable system brings a distant, non-network
signal into its community, the copyright owner's ability to sub-
sequently license the use of its program in that community would
be impaired. In effect, the copyright owner would find itself dealing
in used goods. Thus, all signals are under the compulsory license
but generally the statutory fee is based on the amount of carriage
of distant, non-network programming.
4.
Commercial substitution and program modification
is prohibited. The law provides that if a cable system intentionally
alters the content of the retransmitted program, or changes, deletes,
or adds to commercial advertising or station announcements trans-
mitted by the originating station, it loses the benefit of the
compulsory license. The law permits suit to be brought by the
originating broadcast station or any broadcast station within whose
local service area the cable retransmission is made. In such a case
the court may deprive the cable system of the compulsory license for
a period of up to 30 days. The effect of this is to preclude a cable
operator from deciding that the economic benefits of commercial
substitution or the like are significant enough to forego the compulsory
license and negotiate directly with the copyright owner.
- 9:3 -
5.
There are provisions governing the importation of
foreign television signals. FCC rules permit certain border cable
systems to retransmit certain Mexican and Canadian signals. The new
law extends the compulsory license to the retransmission of Mexican
and Canadian signals by cable systems located within limited zones in
the U.S. In the case of Canadian signals the zone is defined geo-
graphically--it applies to areas located within 150 miles from the
U.S.-Canadian border, or south from the border to the 42nd parallel
of latitude, whichever distance is greater. Included within the
compulsory license area: Detroit, Pittsburgh, Cleveland. Outside:
New York, Philadelphia, Chicago and San Francisco.
The Mexican situation was harder to deal with because
of the effect of the retransmission of Mexican signals on indigenous
U.S. Spanish-language programming. With regard to Mexico, the
zone is defined by technology. The compulsory license applies only
in such areas where the signals may be received by a U.S. cable
system by means of direct interception of a free space radio wave.
Thus, the compulsory license is generally applicable only to systems
which receive the program directly off-the-air and not to those
systems which use microwave or other devices going beyond a mere
receiving antenna.
Additionally, there is a grandfather clause. The
new law permits cable systems authorized to carry Canadian or Mexican
signals under FCC rules in effect on April 15, 1976 to continue
to carry those signals under the compulsory license.
Cable systems operation outside the specified zones,
and not grandfathered in, are not entitled to the compulsory license
and must negotiate for the retransmission of the signals with the
copyright owners.
6.
Section 111 does not normally cover situations where
someone tapes a program off-the-air and the program is later retrans-
mitted from the tape. There is a complicated exception involving
cable systems outside the continental United States, some of which
are allowed to use tape because they cannot pick signals out of the
air. See 111(e).
- 9:4 -
Exemptions
Subsection (a) contains four exemptions to the compulsory
license. These are:
(1)
Secondary transmissions consisting "entirely
of the relaying, by the management of a hotel,
apartment house, or similar establishment" of
a transmission to the private rooms of guests
or residents as long as no direct charges were
made to see or hear it. Private rooms limit it to
living quarters; it would not include dining
rooms, meeting halls, theatres, ballrooms, or
similar places that are outside of a normal circle
of a family and its social acquaintances.
(2)
Secondary transmissions of instructional broadcasts
which are within the scope of section 110(2)
[See Chapter Eight].
(3)
Secondary transmissions of a passive carrier--i.e.,
one which "has no direct or indirect control
over the content or selection of the primary
transmission or over the particular recipients of
the secondary transmission."
(4)
The operations of non-profit "translators" and
"boosters" which do nothing more than amplify
broadcast signals and retransmit them to everyone
in an area for free reception if there is "no
purpose of direct or indirect commercial advantage"
and if there is no charge to the recipients
"other than assessments necessary to defray the
actual and reasonable costs" of maintenance and
operation. This exemption does not apply to a
cable television system.
Outside the scope of the compulsory license (must be licensed from
the copyright owner(s) of the program(s)) - Secondary transmissions of
primary transmission to a controlled group.
Subsection (b) makes it clear that the secondary transmission
to the public of a primary transmission embodying a performance or
display is actionable as an act of infringement if the primary
transmission is not made for reception by the public at large but
is controlled and limited to reception by particular members of
the public. Examples include MUZAK, closed circuit broadcasts to
theaters, subscription television, or pay cable.
- 9:5
-
Filing Requirements: Notices, Statements of Account and the Royalty
Fees
111(d)(1) required all cable systems in operation on
April 17, 1977, to file by April 18, 1977, an initial notice giving
certain identifying information and listing all signals that it
regularly carries. Cable systems that begin operations after
April 18, 1977, must file such a notice 30 days prior to the commencement
of operation. All cable systems are required to file supplemental
notices within 30 days of any change in the information recorded.
The Copyright Office has adopted a regulation implementing
this notification requirement [37 C.F.R. Section 201.11. Copies are
available from the Copyright Office, request ML-142.]
This regulation requests that the notice be identified as
such by prominently captioning the document as "An Initial Notice of
Identity and Signal Carriage Complement." The notice should include:
the identity and address of the person who, or entity which, owns or
operates the system or has power to exercise primary control over it.
The regulation suggests that the legal name be given with any fictitious
or assumed name adopted for the purpose of conducting business. It
also asks for the name and location of the primary transmitter or
primary transmitters whose signals are regularly carried and suggests
the station's call sign, accompanied by a brief statement of the type
of signal carried (TV, "FM" etc.) be given. The location the Copyright
Office would like is the name of the community to which the transmitter
is licensed by the FCC. The Office in its regulation suggests that
the notices be dated and that they contain the individual signature
of the person identified as the owner, etc. or his authorized agent.
The Initial Notices and Notices of Change will be placed in
"the appropriate public files" of the Copyright Office. For a fee of
$3 the Copyright Office will furnish a certified receipt.
Section 111(d)(2) requires all cable televisions to file
semiannual statements of account. These statements must include a
royalty fee for the six-month period covered; must list all signals
carried during that period; and must provide information on the
number of channels, the number of subscribers and gross receipts
for basic service. Each statement must also be supplemented by
a special statement of account covering distant non-network programming
carried pursuant to
FCC
rules allowing for the addition or substitution
of signals. Also, the Register is empowered to require, by regulation,
the filing of "other data."
- 9:6 -
Section 111(d)(3) provides that the fees are to go to the
Register, who, after deducting the reasonable costs incurred by
the Office, shall deposit them in the Treasury. The Treasury is
instructed to put the money into interest bearing U.S. securities.
Section 111(d)(4) lists the copyright owners entitled
to royalty fees. They are: (1) copyright owners whose works were
included.. .by a cable system of a distant non-network television
program; (2) any copyright owner whose work is included in a secondary
transmission identified in a special statement of account; and (3)
copyright owners whose works were included in distant non-network
programming consisting exclusively of aural signals--i.e., radio.
No royalties may be claimed or distributed for "local"
or "network" programs.
Every year during the month of July every person claiming
to be entitled to royalties must file with the Copyright Royalty
Tribunal (see below). After the first day of August of each year
the Tribunal shall determine whether a controversy exists. If
no controversy exists, the Tribunal, after deducting its reasonable
administrative costs, shall distribute the fees to the owners or
their agents. If a controversy exists, it must conduct a proceeding
in accordance with chapter 8 of the 1976 Act.
Summary
In order to be covered by the compulsory license provided
by Section 111, a cable system must:
-
retransmit only those signals permitted under
FCC rules
-
comply with the filing and reporting requirements
of the Copyright Office
-
pay the royalties established by the formula in the
law
-
avoid program modification or commercial substitution
-
restrict its retransmissions to programs that
originate from FCC-licensed stations in the U.S.
-
(in the case
of a Canadian signal) be located in
the appropriate zone; or
-
(in the case of
a Mexican signal) limit itself
to the appropriate technology.
- 9:7 -
COMPULSORY LICENSE
FOR MAKING AND DISTRIBUTING
PHONORECORDS EMBODYING
NONDRAMATIC MUSICAL COMPOSITIONS (Section 115)
Sections 1(e) and 101(e) of the 1909 Act grant the copy-
right owner of a musical composition the exclusive right to make
or license the first recording. After that anyone else may make a
"similar use" of the work. The compulsory license provision of
the old law required that the compulsory licensee notify the copyright
owner of his intent, send a copy of the notice of intention to
use to the Copyright Office for recordation, and pay the statutory
royalties at the appropriate time.
A major issue in the revision effort was whether to retain
this compulsory license. The Copyright Office originally suggested
that the compulsory license provision be eliminated. This proposal
was met with fierce opposition by record producers both small and
large. Even copyright proprietors favored its retention in some
form.
In 1967 the House Judiciary Committee noted in its report
that it favored retention of the principle; it did, however, also
state "that the present system is unfair and unnecessarily burden-
some on copyright owners" and observed "that the present statutory
rate is too low."
The compulsory license for making phonorecords of copy-
righted nondramatic musical compositions is retained in section
115 of the new law; there are, however, substantial changes in the
system.
Availability and Scope of the Compulsory License (Section 115(a))
This subsection makes the compulsory license available
as soon as the copyright owner of the music distributes phonorecords
to the public in the United States. The distribution must be authorized
by the copyright owner of the music.
The compulsory license is available only if the purpose in
making phonorecords is to distribute them to the public for private
use. (Background music systems need the express consent of the
copyright owner; they may not rely on this section.)
The compulsory license provided by section 115 is not
available to an unauthorized duplicator. Moreover, the iipterpretation
of Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th Cir.), cert.
denied, 409 U.S. 847 (1972) and its progeny--Marks, Jondora and
Fame--is incorporated into the legislative reports. However, it
- 9:8 -
is possible to duplicate the sounds fixed and owned by another
as long as the owner of those sounds authorizes the duplication.
If the owner of the sounds authorizes the use, section 115 is
applicable.
Subsection (a) recognizes the practical need for a limited
privilege to make new arrangements of the music being used under
a compulsory license. It does not, however, allow the music to
be "perverted, distorted, or travestied." [House Report 94-1476.]
A new arrangement may be made as long as it doesn't change the
basic melody or fundamental character of the work. There can
be no copyright in the new arrangement unless the copyright owner
of the music specifically authorizes the new arrangement.
Notice of Intention to Obtain a Compulsory License (Section 115(b))
The user must serve a notice of his or her intent on
the copyright owner before or within 30 days after the phonorecords
have been made; however, the notice must be served before any phono-
records are distributed. If the copyright owner is not identified in
the registration or other records of the Copyright Office, the notice
of intention should be filed with the Copyright Office.
The notice must comply with the form, content and manner
of service required by the regulations of the Copyright Office.
Failure to file the required notice of intention rules
out the compulsory license; in the absence of a negotiated license, the
user is subject to the remedies applicable to other types of infringement.
Royalty Payable under the Compulsory License (Section 115(c))
A "notice of use," Form U, is not required under the new
law. Instead, to receive royalties, the copyright owner must be
"identified in the registration or other public records of the
Copyright Office."
Proper identification is an important condition of recovery--
the owner is entitled to royalties for phonorecords made and distributed
after being so identified, but is not entitled to recover for any
phonorecords previously made and distributed.
Royalty payments are to be made on or before the 20th
day of each month. Each payment must be under oath and must comply
with the requirements of the Copyright Office regulation on this
subject.
- 9:9 -
The Register of Copyrights, by regulation, is to establish
criteria for the detailed annual statements of account which must be
certified by a Certified Public Accountant. A regulation will pre-
scribe the form, content, manner of certification with respect to the
number of records made, and the number of records distributed.
The royalty rate is 2 3/4 cents or 1/2 cent per minute or
fraction of playing time, whichever is larger, for each work embodied
in the phonorecord.
Under the old law, the royalty payment was for each phono-
record manufactured; under the new law, it's for each phonorecord
"made and distributed." Congress believed it was unfair to require
payment of license fees on records which merely go into inventory,
which may later be destroyed and from which the record producer gains
no economic benefit. A phonorecord is considered "distributed" if the
compulsory licensee has voluntarily and permanently parted with posses-
sion.
The House Report notes that "made" is meant to be broader
than "manufactured;" that it is meant to "include within its scope
every possible manufacturing or other process capable of reproducing
a sound recording in phonorecords."
The legislative reports make it clear that "even if a presser,
manufacturer, or other maker had no role in the distribution process,
that person would be jointly and severally liable where the provisions
of section 115 were not complied with."
The Register of Copyrights is to issue a regulation prescribing
a point in time when, for accounting purposes, under section 115, a phono-
record will be considered "permanently distributed," and situations in
which a compulsory licensee is barred from maintaining reserves (e.g.,
situations in which the compulsory licensee has frequently failed to
make payments in the past).
Subsection (4) allows the copyright owner to serve written
notice on a defaulting licensee; the compulsory license is terminated
if the default is not remedied in 30 days from the date of the notice.
Termination makes the making or the distribution, or both, of all
phonorecords for which the royalty has not been paid actionable as
acts of infringement.
- 9:10 -
PUBLIC PERFORMANCE BY MEANS OF COIN-OPERATED PHONORECORD PLAYERS
(Section 116)
Section 1(e) of the 1909 law contains the "jukebox exemption."
The position of the Copyright Office has been that this exemption is an
historical anomaly. The 1961 Report of the Register notes that it was
placed in the law in 1909 "at the last minute with virtually no dis-
cussion." The Report also observes that in 1909 coin-operated music
machines were apparently a novelty of little economic consequence.
The Copyright Office recommended that this exemption be repealed, or
at least be replaced by a provision requiring jukebox operators to
pay reasonable license fees for the public performance of music for
profit.
Section 116(a)(2) provides that the operator of a coin-
operated phonorecord player may obtain a compulsory license for the
public performance of nondramatic musical works on that machine. A
"coin-operated phonorecord player" is defined as one which is "activated
by the insertion of coins, currency, tokens, or other monetary units
or their equivalent." To come within the compulsory license provision
the following must be present:
1.
The establishment where the machine is located
must make "no direct or indirect charge for
admission;"
2.
The phonorecord player must be "accompanied by
a list of titles of all musical works available
for performance on it," and the list must be
affixed to the machine itself or "posted in the
establishment in a prominent position where it
can readily be examined by the public;" and
3. The machine must provide "a choice to be made
by
the patrons of the establishment in which
it is located."
To obtain the compulsory license, the jukebox operator must
file an application with the Copyright Office, send the royalty payment,
and then affix the certificate to the jukebox in a way that it is readily
visible to the public. The application must be filed within one month
after the machine is placed in use and during the month of January in
each succeeding year. The royalty payment for a full year is
$8.00,
or if filed for the first time after July 1 of any year the fee is
$4.00.
- 9:11 -
Within twenty days after the Copyright Office receives an
application
and
fee, the certificate must be issued. The certificate
must be affixed to the machine on or before March 1 or within ten days
after the date of issue.
Under 116(b)(2) the failure to file, affix the certificate
or pay the royalty would make any public performance on that machine
an infringement subject to all the remedies provided by Chapter Five
of the law.
Section 116(c)(1) requires the Register, after deducting
reasonable administrative costs, to deposit in the Treasury the fees
collected. These fees are to be invested in interest-bearing securities
for later distribution with interest by the Copyright Royalty Tribunal.
The Register has to submit to the Tribunal an annual detailed statement
accounting for all the fees received during the preceding year.
116(c)(2) provides that during each January every person
claiming to be entitled to a portion of the fees collected under
§116 shall file a claim with the Tribunal. The claim must include
an agreement to accept the determination of the Tribunal as final
in any controversy. Judicial review, however, is provided for in
section 810.
After the first of October the Tribunal is to determine
whether a controversy exists. If there is no controversy, it will
distribute the fees after deducting "its reasonable administrative
costs." If it decides that there is a controversy, it must conduct
a hearing to determine the distribution of royalty fees.
116(4) directs the Tribunal to promulgate regulations
whereby the persons who have reason to believe they will be entitled
to file a claim for public performances of their works for a given
year are permitted to have access to phonorecord players (jukeboxes)
to determine their share of the fees. A potential claimant could
not harass an establishment proprietor, but if the claimant were
denied access which is granted by this section, he or she may bring
an action in the U.S. District Court for the District of Columbia
for cancellation of the compulsory license of the jukebox to which
he or she was denied access.
- 9:12 -
Under 116(d) certain actions which would fraudulently
subvert the intent of this section would be subject to a criminal
penalty. The falsification of material facts in the application,
the alteration of the certificate, or knowingly affixing the certi-
ficate to a machine other than the one it covers, would subject the
guilty party to a fine of up to $2,500.
[NOTE: it is the operator and not the proprietor of the establish-
ment that section 116 is aimed at. The proprietor is exempt from
liability unless he also is an operator of the machine or unless he
fails or refuses to reveal the identity of the operator. (§116(a)(1))].
NONCOMMERCIAL, i.e., PUBLIC BROADCASTING (Section 118)
Section 118 provides a compulsory license for public broad-
casting for the use of published nondramatic musical works and pub-
lished pictorial, sculptural and graphic works provided certain con-
ditions are met.
Works Not Included
Materials which are excluded under this compulsory license
are: nondramatic literary works, plays, operas, ballets, motion
pictures and other audiovisual works including television programs.
Subsection (e), however, encourages the parties to conclude
voluntary agreements for the use of nondramatic literary works, and
the Register is to report to Congress on January 3, 1980 on the extent
to which voluntary agreements have been reached. The report is also
to include any problems that have arisen and to make appropriate
legislative recommendations.
Subsection (0 clarifies that section 118 does not apply
to unauthorized dramatizations of nondramatic musical works, to
program productions based on published compilations of pictorial,
graphic or sculptural works, or to the use of audiovisual works,
except as such may be considered "fair uses" within the meaning of
section 107.
- 9:13 -
Voluntary Negotiations
Although this section sets up a compulsory license, it
strongly encourages voluntary agreements between public broadcasters
and copyright owners. Voluntarily negotiated agreements shall prevail
in every case provided they are filed in the Copyright Office within
30 days of execution in accordance with regulations prescribed by
the Register of Copyrights. [37 C.F.R. Section 201.9; copies avail-
able from the Copyright Office request ML-146].
Voluntary agreements become effective upon their being
filed in the Copyright Office. This applies not only to the cate-
gories of works included under the compulsory license, but also to
nondramatic literary works which are not. The Regulation provides
that the original instrument of agreement, or a legible photocopy
or other full-size facsimile reproduction accompanied by a certi-
fication that the reproduction is a true copy be filed. All
persons identified as parties in the document must sign it or have
an authorized agent sign for them. The document must be complete
on its face; it should be clearly identified as being submitted
under section 118, and it must be accompanied by the appropriate
fee. The date of recordation is the date on which all elements
have been received by the Copyright Office and after recordation,
the document is returned to the sender with a certificate of record.
Components of Compulsory License
A compulsory license may be obtained for one or more of
the following activities [subsection (d)]:
1.
performances or displays of published music
or graphics by a public broadcasting entity
in the course of a noncommercial educational
broadcast transmission;
2.
production, reproduction and distribution of
copies or phonorecords of such programs by a
public broadcasting entity; and
3. simultaneous off-air videbtaping and performance
or display of such transmissions by nonprofit
institutions or governmental bodies for face-
to-face teaching purposes within the conditions
of 110(1) for a period of seven days from the
transmission.
- 9:14 -
,
There is a provision, however, that broadcasters are not
liable for copies of programs they supplied which are not destroyed
within this period if they inform the receiving institution of this
destruction obligation.
The terms and rates of the compulsory license are to be
established by the Copyright Royalty Tribunal between 120 days and
six months after it publishes a notice of the initiation of pro-
ceedings. The notice is supposed to be published "not later than
thirty days after the Copyright Royalty Tribunal has been consti-
tuted."
No initial rates have been established by the new law for
public broadcasting licenses; nor does the Tribunal collect and
distribute monies. Rather the Tribunal is to devise a schedule of
rates and terms within 120 days or six months from the date of the
publication of the initial notice. In addition, section 118 does
not indicate when compulsory licensing rates must be paid.
A provision in subsection (b)(3) directs the Tribunal to
establish requirements by which copyright owners may receive reason-
able notice of the use of their works under section 118 -- the records
of such use are to be kept by public broadcasting entities.
Definitions
As used in section 118, "public broadcasting entity" means
a noncommercial educational broadcast station as defined by the FCC.
In addition, any "nonprofit institution or organization" is eligible
if it is engaged in the activities described in section 118(d)(2).
COPYRIGHT ROYALTY TRIBUNAL
[Chapter 8 - Sections 801-810]
The Copyright Royalty Tribunal, an independent body in
the legislative branch of the government, shall consist of five
commissioners to be appointed by the President with the advise and
consent of the Senate. The term of service is seven years; however,
for start-up purposes three commissioners will have seven-year terms
while the other two will beinamed to serve for five years.
- 9:15 -
The Copyright Royalty Tribunal was established for the
purpose of distributing the royalties to those entitled to receive
payment under sections 111 (secondary transmissions by cable systems)
and 116 (performance by means of a jukebox). If disputes arise over
the distribution of these royalties, the Tribunal is to resolve these
disputes. In addition, the Royalty Tribunal is to make determinations
as to reasonable terms and rates of royalty payments as provided in
section 118
(public
broadcasting), and to periodically review and
adjust statutory royalty rates for the use of copyrighted materials
pursuant to the four compulsory licenses.
Distribution of Royalties
(Section 809)
The Tribunal is charged with distributing the royalties
for cable and jukeboxes. If a controversy is determined to exist,
the Tribunal must publish a notice of commencement of proceedings.
The Tribunal is required to render a final decision in any such
proceeding within one year from the date of publication of the
notice.
The full scope of judicial review allowed by the Adminis-
trative Procedure Act is allowed. Section 810 specially provides
that any final decision of the Tribunal under 801(b) is appealable
to the U.S. Court of Appeals within 30 days after publication in the
Federal Register.
Periodic
Review
(Section 804)
The new law provides for a periodic review of the estab-
lished royalty rates as follows:
Cable -- section 111: 1980 and each subsequent
fifth year.
Mechanical license for music on phonorecords -
section 115: 1980, 1987 and in each subsequent
10th year.
Jukeboxes -- section 116: 1980 and in each subsequent
10th year.
Public broadcasting -- section 118: rates established
will be reviewed in 1982 and in each subsequent
5th year.
- 10:1 -
CHAPTER TEN
NOTICE OF COPYRIGHT [Sections 401 - 406]
As the Supplementary Report of the Register points out,
one of the principal criticisms of the 1909 Act concerns the provisions
requiring a notice of copyright as a condition of protection. Unintentional
omission of the notice and comparatively trivial errors in its form
and position have caused forfeiture in a number of cases.
Both the 1961 Report of the Register and the 1965 Supplementary
Report recommended, however, that the notice did serve several
useful and definite purposes. They recognized four principal values
of a copyright notice: (1) placing published material which no one
is interested in protecting in the public domain; (2) showing
whether a work is under copyright; (3) identifying the copyright
owner; and (4) showing the year of publication. Therefore, these
reports recommended that the new law continue to require a notice on
published copies but suggested that there be provisions ameliorating
the effect for inadvertent omissions and errors.
In general, sections 401 through 406 represent an effort
to preserve the values of the notice by inducing its use while
substantially ameliorating the effects of accidental or even
deliberate errors or omissions. Subject to certain safeguards
for innocent infringers, protection would not be lost by the complete
omission of the 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. Error in the name or date in the notice
would not be fatal and could be corrected.
Sections 401 and 402 set out the basic notice requirements--
401 deals with "copies from which the work can be visually perceived,"
and 402 deals with "phonorecords" of sound recordings. As the
legislative reports note, the notice requirements established by
these parallel provisions apply only when copies or phonorecords of a
work are "publicly distributed." They [the reports] state that 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.
- 10:2 -
Both sections 401 and 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," makes
it clear that the notice requirements apply to copies or phonorecords
distributed to the public anywhere in the world, regardless of where
and when the work was first published.
NOTICE ON VISUALLY PERCEPTIBLE COPIES (Section 401)
Subsections (b) and (c) set out the requirements concerning
form and position.
Subsection (b) states the required elements. They are:
1.
the symbol
(the letter C in a circle), or the
word "Copyright", or the abbreviation "Copr."
2.
the year of first publication of the work
3. the name of the owner of copyright in the work,
or an abbreviation by which the name can be
recognized, or a generally known alternative
designation of the owner.
There are two special provisions concerning compilations or
derivative works and certain pictorial, graphic or sculptural works:
In
compilations
or
derivative works
incorporating previously
published material the year of first publication of the
compilation or derivative work is sufficient.
In
pictorial, graphic,
or
sculptural
works, with accompanying
text matter, if any, the year date may be omitted where
such a work is reproduced in or on greeting cards, postcards,
stationery, jewelry, dolls, toys, or any useful articles.
Subsection (c) simply provides that the notice "shall
be affixed to the copies in such manner and location as to give
reasonable notice of the claim of copyright." This provision follows
the flexible approach of the Universal Copyright Convention.
- 10:3 -
This subsection also provides that the Register of Copy-
rights is to set forth by regulation a list of examples of "specific
methods of affixation and positions of the notice on various types of
works that will satisfy this requirement." A notice placed or
affixed in accordance with Copyright Office regulations would clearly
meet the requirements but, since the Register's examples 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.
NOTICE ON PHONORECORDS OF SOUND RECORDINGS (Section 402)
Subsections (b) and (c) set out the requirements
concerning form and position.
Subsection (b) requires three elements for the notice.
They are:
1.
the symbol (P)
(the letter P in a circle)
2.
the year of first publication of the sound recording
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.
With regard to the name requirement, the law also provides
for a presumption in favor of the record producer. This subsection
states "if the producer of the sound recording is named on the
phonorecord labels or containers, and if no name appears in conjunction
with the notice, the producer's name shall be considered a part of
the notice.
Subsection (c) provides that "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."
The legislative reports note three of the reasons for
prescribing use of the symbol
"(P)"
rather than "ID":
1.
Need to avoid confusion between claims to copyright
in the sound recording and in the musical or literary
work embodied in it;
2.
Need to distinguish between claims in the sound
recording and in the printed text and art work
appearing on the record label, album cover, liner
notes, etc.
- 10:4 -
3. This symbol has 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 U.S. is a
party.
NOTICE FOR PUBLICATIONS INCORPORATING UNITED STATES GOVERNMENT WORKS
(Section 403)
This section requires a special notice for a publication
that incorporates United States Government works. It provides
that, when the copies or phonorecords consist "preponderantly of
one or more works of the United States Government," the notice
identify those parts of the work in which copyright is claimed--
that is, the "new matter" added to the uncopyrightable United States
Government work. A failure to meet this requirement would be treated
as an omission of the notice subject to the provisions of section
405.
NOTICE FOR CONTRIBUTIONS TO COLLECTIVE WORKS (Section 404)
In conjunction with section 201(c), section 404 deals
with a serious problem under the 1909 law: the notice requirements
applicable to contributions published in periodicals and other
collective works. The basic approach of this section is to permit
but not require a separate contribution to contain its own notice
and to make a single notice, covering the collective work as a
whole, sufficient to satisfy the notice requirement for the separate
contributions it contains.
As the legislative reports indicate, the rights in an
individual contribution to a collective work generally would not
be affected by the lack of a separate notice as long as the collective
work as a whole bears a notice. One exception is advertisements
inserted on behalf of persons other than the owner of copyright in
the collective work.
Subsection (b) provides that where a separate contribution
does not bear its own notice and is published in a collective work
with a general notice containing the name of someone other than the
copyright owner of the contribution, it is treated as if it has been
published with the wrong name in the notice. This means that this
will be governed by section 406(a) and an innocent infringer who in
good faith took a license from the person named in the general notice
would be shielded from liability to some extent.
- 10:5 -
OMISSION OF COPYRIGHT NOTICE (Section 405)
Subsection (a) makes it clear that the notice requirements
of sections 401, 402 and 403 are not absolute and that, unlike
the 1909 law, the outright omission of a copyright notice does not
automatically forfeit protection and place the work into the public
domain. Under this section a work published without a notice will
still be eligible for statutory protection for at least five years,
whether the omission was partial or total, unintentional or deliberate.
Subsection 405(a) provides that the omission of notice does
not invalidate the copyright if either of two conditions is met:
(1)
if "no more than a relatively small number" of copies
or phonorecords have been publicly distributed without
notice; or
(2)
if registration for the work has previously been
made, or is made within five years after publication
without notice, and a reasonable effort is made
to add notice to copies or phonorecords publicly
distributed in the U.S. after the omission is
discovered.
Thus, if the notice is omitted from more than a "relatively small
number" of copies or phonorecords, copyright is not lost immediately,
but the work will go into the public domain if no effort is made to
correct the error and if the work is not registered within five years
after copies or phonorecords were published without a notice.
Both the House and Senate Reports state that the phrase
"relatively small number" is intended to be less restrictive than
the phrase "a particular copy or copies" in section 21 of the old
law.
[Note: the basic notice requirements are limited to
cases where a work is published "by authority of the copyright
owner" and 405(a), therefore, refers only to omission "from copies
or phonorecords publicly distributed by authority of the copyright
owner." Example: if the copyright owner authorized publication
only on the express condition that all copies or phonorecords bear a
prescribed notice, the notice provisions would not apply since
the publication itself would not be authorized.]
- 10:6 -
Subsection (b) provides that an innocent infringer who
acts "in reliance upon an authorized copy or phonorecord from
which the copyright notice has been omitted" and who proves that
he or she was misled by the omission is protected from liability
for actual or statutory damages with respect to "any infringing
acts committed before receiving actual notice" of registration.
This is seen as a major inducement to use of the notice.
Subsection (c) deals with the removal, destruction or
obliteration of the notice without the authorization of the copyright
owner. It provides that this does not affect the copyright protection
in the work.
ERROR WITH RESPECT TO NAME OR DATE IN NOTICE (Section 406)
It was common under the 1909 law for a copyright notice to
be fatally defective because the name or date had been omitted or
wrongly stated. As the legislative reports indicate, this section is
intended to avoid technical forfeitures in these cases, while at the
same time inducing use of the correct name and date in protecting
users who rely on erroneous information.
Wrong name: Under 406(a) the use of the wrong name in
the notice would not affect the validity or ownership
of the copyright. However, unless the error has been
corrected in the records of the Copyright Office, an
innocent infringer misled by the notice would have a
complete defense if he infringed under the apparent
authority of the person named in the notice.
Wrong date: 406(b)
a.
Antedated: where the year is earlier than the
year of first publication, any statutory term
measured from the year of first publication will
be computed from the year given in the notice.
This is the established judicial principle which
is codified in this subsection.
This would be applicable to anonymous works,
pseudonymous works and works made for hire--see
302(c). The legislative reports indicate that this
will also be applicable to the presumptive periods
set forth in section 302(e).
b.
Postdated: where the year in the notice is more
than one year later than the year of first publication,
the case is treated as if the notice had been omitted
and is therefore governed by section 405.
- 10:7 -
The reports state that notices postdated
by one year are quite common in works published
near the end of the year, and it would be unnecessarily
strict to equate cases of this sort with works
published without a notice.
[Note: under the 1909 law claims are registered in cases
where the year in the notice is postdated by one
year. See 37 CFR 202.2. Where the year in the
notice is postdated by more than one year the
Copyright Office rejects the claim.]
Omission of name and date: Subsection (c) provides that,
if copies or phonorecords "contain no name or no date that
could reasonably be considered a part of the notice," the
result is the same as though the notice had been omitted
entirely and section 405 controls.
As the legislative reports point out, there is no requirement
that the elements of the copyright notice "accompany" each other.
The reports state that under this provision a name or date that could
reasonably be read with the other elements may satisfy the notice
requirements even if somewhat separated from them. "Direct contiguity
or juxtaposition of the elements is no longer necessary; but if the
elements are too widely separated for their relation to be apparent,
or if uncertainty is created by the presence of other names or dates,
the case would have to be treated as if the name or date, and hence
the notice itself had been omitted altogether."
- 11:1 -
CHAPTER ELEVEN
DEPOSIT AND REGISTRATION [Sections 407-412]
Sections 407-412 mark another departure from the old
law and bring the U.S. closer to international practice. Under the
1909 Act, deposit of copies for the collections of the Library
and for purposes of copyright registration have been treated as
the same thing. The new law's approach is to regard deposit and
registration as separate though related requirements. Deposit
of copies and phonorecords for the Library is generally required
for material published in the United States. Copyright registration,
as such, is not required but the new law has substantial inducements
for registration. Deposit for the Library can be combined with
registration.
DEPOSIT FOR THE LIBRARY OF CONGRESS (Section 407)
The basic requirement of this provision is that within
three months after a work has been published with notice in the
United States, the owner of copyright must deposit two copies or
phonorecords of the work in the Copyright Office. Exceptions to this
requirement will be embodied in regulations promulgated by the
Register which will be aimed at meeting the needs of the Library and
adjusting the deposit obligations to meet special situations.
If the "owner of copyright or of the exclusive right
of publication" does not deposit the copies or phonorecords and the
work is not one of the categories that is exempted, the Register may
demand deposit. Failure to comply would not invalidate the copyright;
however, it would subject the owner to fines.
The legislative reports make it clear that section 407
applies to a foreign work as soon as such a work is first published
in this country.
With respect to works, other than sound recordings, the
basic obligation is to deposit "two complete copies of the best
edition," as defined in section 101. Section 101 makes it clear
that the Library is entitled to receive copies or phonorecords
from the edition it believes best suits its needs
regardless
of
quantity or quality of other U.S. editions that may also have been
published before the time of deposit.
- 11:2 -
For sound recordings, two complete phonorecords of the best
edition and any other visually perceptible material published with
the phonorecords must be deposited. Thus, for example, text or
pictorial matter appearing on record sleeves and album covers would
have to be deposited too. As the legislative reports state, the
required deposit in the case of a sound recording would extend to the
"entire package" and not just to the disk, tape or other phonorecord.
407(c) is aimed at the special needs of artists whose
works are published in expensive limited editions. Under the present
law, optional deposit of photographs is permitted for various classes
of works but not for fine prints. This subsection requires the
Register to issue regulations under which such works would either
be exempted entirely from mandatory deposit or would be subject
to an appropriate alternative form of deposit.
Subsection (d) provides for demand by the Register.
It states that if, after written demand has been made, the required
copies (or copy) are not deposited within, three months after the
demand is received, the person or persons on whom the demand was made
are liable:
1.
to pay a fine of not more than $250 for each
work; and
2.
to pay to the Library's specially designated
fund, the total retail price of the copies or
phonorecords demanded, or, if no retail price has
been fixed, the reasonable cost of the Library of
Congress of acquiring them; and
3. if such person willfully or repeatedly refuses
to comply with such a demand, to pay an additional
fine of $2,500.
Subsection (e) ties in with the American Television and
Radio Archives Act, 2 USC 170, which appears as section 113 of the
Transitional and Supplementary Provisions. This subsection was
added to provide a basis for the Librarian of Congress to acquire,
as part of the copyright deposit system, copies or recordings of
non-syndicated radio and television programs without imposing any
hardships on broadcasters. Under this subsection the Library is
authorized to tape programs off the air in all cases and may "demand"
that the Library be supplied with a copy or phonorecord of a particular
- 11:3 -
program. As the House Report notes, this "demand" authority is
extremely limited for: 1. the broadcaster is not required to retain
any recording of a program after it has been transmitted unless a
demand has already been received; 2. the demand would cover only a
particular program--"blanket" demands would not be permitted; 3. the
broadcaster would have the option of supplying by gift, by loan for
purposes of reproduction, or by sale at cost; and 4. the penalty for
willful failure or refusal to comply is limited to the cost of
reproducing and supplying the copy or phonorecord in question.
[Note: section 705 requires that records be kept of
all deposits. For $2 the Office will provide a receipt of deposit--
section 708(3).]
COPYRICHT REGISTRATION IN GENERAL (Section 408)
Permissive registration. Under 408(a) registration of
a claim to copyright, whether published or unpublished, can be
made voluntarily by "the owner of copyright or of any exclusive
right in the work" at any time during the copyright term. The
claim may be registered by depositing copies, phonorecords, or
other materials specified by subsections (b) and (c), together
with an application and fee.
Except where registration is made to preserve a copy-
right that would otherwise be invalidated because of omission of
the notice, (section 405(a)), registration is not a condition of
copyright protection.
Deposit for purpose of registration. In general, and
subject to various exceptions, the material to be deposited should
be one complete copy or phonorecord of an unpublished work, and
two complete copies of the best edition in the case of a published
work.
For works first published outside the United States,
one complete copy or phonorecord "as so published" would be required.
[Note: the provision in the 1909 law, section 215, which allows
waiver of the registration fee for foreign works if, within six
months of first publication, two copies are deposited instead of
the usual one, has been dropped. This provision was enacted in
1949 to meet the serious postwar problems of transferring funds
from foreign countries to the United States. This waiver-of-fee
option was found to be administratively burdensome and the 1965
Supplementary Report
of
the Register states that it "appears to
have outlived its usefulness."]
- 11:4 -
For a contribution to a collective work, one complete
copy or phonorecord of the best edition of the collective work will
be required.
Subsection (b) also provides that copies or phonorecords
deposited for the Library under 407 may be used to satisfy the
deposit provisions of 408 "if they are accompanied by the prescribed
application and fee, and by any additional identifying material that
the Register may, by regulation, require."
Beginning on January 1, 1978, the effective date of the
new law,...deposit copies or phonorecords must be accompanied by
an application and fee if they are to be used for copyright registration.
If copies or phonorecords are sent separately they will not be held
to await connection with an application and fee. After this date, if
copies or phonorecords are sent without simultaneously submitting an
application and registration fee, the deposit will be used for the
Library of Congress but not for registration.
The Register is authorized to issue regulations under
which deposit of additional material, needed for identification of
the work in which copyright is claimed, could be required in certain
cases.
Classification
and
deposit regulations.
Subsection (c)
allows the Register, by regulation, to specify "the administrative
classes into which works are to be placed for purposes of deposit
and registration." The legislative reports state that it is important
that the statutory provisions setting forth the subject matter
of copyright be kept entirely separate from the administrative
classification. Moreover, the law makes it clear that the admin-
istrative classification "has no significance with respect to the
subject matter of copyright or the exclusive rights provided by this
title."
The Register is also given latitude in adjusting the
type of materials deposited to the needs of the registration system.
The Register is authorized to issue regulations specifying "the
nature of the copies or phonorecords to be deposited in the various
classes" and for particular classes, to require or permit deposit of
one copy or phonorecord rather than two.
The legislative reports note that under this provision
the Register could, where appropriate, permit deposit of phonorecords
rather than notated copies of musical compositions, allow or require
deposit of print-outs of computer programs under certain circumstances,
or permit deposit of one volume of an encyclopedia for purposes
of registration of a single contribution.
- 11:5 -
The Register is also allowed to require or permit the
substitute deposit of material that would better serve the purposes
of identification where copies or phonorecords are bulky, unwieldy,
easily broken, or otherwise impractical to file and retain as
records identifying the work registered. Examples: billboard posters,
toys and dolls, ceramics and glassware, costume jewelry and a wide
range of three dimensional objects.
The Register's authority also extends to rare or extremely
valuable copies which would be burdensome or impossible to deposit.
The legislative reports note that deposit of one copy rather than
two would probably be justifiable in the case of most motion pictures.
The Register also has the authority to allow a single
registration for a "group of related works." The legislative
reports include the following examples: the various editions or
issues of a daily newspaper, a work published in serial installments,
a group of related jewelry designs, a group of photographs by one
photographer, a series of greeting cards related to each other
in some way, or a group of poems by a single author.
Under 408(c)(2) the Register is directed to establish
regulations permitting, under certain conditions, a single registration
for a group of works by the same individual author, all first published
as contributions to periodicals, including newspapers, within a 12
month period, on the basis of a single deposit, application and fee.
Each of the works as first published must have contained a separate
copyright notice, and the name of the owner must have been the same in
each notice. Deposit of one copy of the entire issue of the periodical,
or of the entire section in the case of a newspaper, in which each
contribution is first published is required. The application must
identify each work separately, including the periodical containing
it and its date of first publication.
408(c)(3) provides, under certain conditions, an alternative
to the separate renewal registrations under section 304(a). If the
specified conditions are met, a single renewal registration may be
made for a group of works by the same individual author, all first
published as contributions to periodicals, including newspapers.
The requirements are:
1. the renewal claimant or claimants and the basis
for the claim or claims under 304(a) is the
same for each of the works; and
- 11:6 -
2.
the works were all copyrighted upon their first
publication, either through separate copyright
notice and registration or by virtue of a general
notice in the periodical issue as a whole; and
3.
the renewal application and fee are received
not more than 28 or less than 27 years after the
31st day of December of the calendar year in which
all of the works were first published; and
4. the renewal application identifies each work
separately, including the periodical containing it
and its date of first publication.
Corrections and amplifications: There is no provision in the present
law for correcting or amplifying the information given in a completed
registration. There is such a procedure provided by regulation--see
201.5 of the present Copyright Office Regulations.
Subsection (d) authorizes the Register to establish "formal
procedures for filing of an application for supplementary registration,"
in order to correct an error or amplify the information in a copyright
registration. The "error" to be corrected is an error made by
the applicant that the Copyright Office could not have been expected
to note during its examination.
A supplementary registration under subsection (d) is
subject to payment of a separate fee and would be maintained as
an independent record separate and apart from the record of the
earlier registration. It would, however, be required to identify
clearly "the registration to be corrected or amplified" so that
the two registrations could be tied together by appropriate means in
the Copyright Office records.
The original record would not be expunged or cancelled,
rather it would be maintained to insure a complete public record.
APPLICATION FOR COPYRIGRT REGISTRATION (Section 409)
This section provides that the form prescribed by the
Register shall include:
(1) the name and address of the copyright claimant;
- 11:7 -
(2)
in the case of a work other than an anonymous
or pseudonymous work, the name and nationality
or domicile of the author or authors, and, if one
or more of the authors is dead, the dates of
their deaths;
(3)
if the work is anonymous or pseudonymous, the
nationality or domicile of the author or authors;
(4)
in the case of a work made for hire, a statement
to this effect;
(5)
if the copyright claimant is not the author,
a brief statement of how the claimant obtained
ownership of the copyright;
(6)
the title of the work, together with any previous
or alternative titles under which the work can
be identified;
(7)
the year in which creation of the work was completed;
(8)
if the work has been published, the date and
nation of its first publication;
(9)
in the case of a compilation or derivative work,
an identification of any preexisting work or
works that it is based on or incorporates, and a
brief, general statement of the additional material
covered by the copyright claim being registered;
(10)
in the case of a published work containing material
of which copies are required by section 601 to be
manufactured in the United States, the names of
the persons or organizations who performed the
processes specified by subsection (c) of section
601 with respect to that material, and the places
where those processes were performed; and
(11)
any other information regarded by the Register
of Copyrights as bearing upon the preparation or
identification of the work or the existence,
ownership, or duration of the copyright.
- 11:8 -
The legislative reports indicate that the catchall
phrase at the end of section 409 was included to enable the Register
to obtain more specialized information, such as that bearing on
whether the work contains material that is a "work of the United
States Government." The reports also note that in the case of works
subject to the manufacturing requirement, the application must also
include information about the manufacture of copies.
REGISTRATION OF CLAIM AND ISSUANCE OF CERTIFICATE (Section 410)
The Register is required to register the claim and issue a
certificate if he or she determines that "the material deposited
constitutes copyrightable subject matter and that the other legal and
formal requirements... have been met."
The Register is required to refuse registration and notify
the applicant if he determines that "the material deposited for
registration does not constitute copyrightable subject matter or
that the claim is invalid for any other reason."
Subsection (c) deals with the probative effect of a
certificate of registration. A certificate is required to be given
prima facie weight in any judicial proceedings if the registration it
covers was made "before or within five years after first publication
of the work"; thereafter the court is given discretion to decide what
evidentiary weight the certificate should be accorded.
The legislative reports note that the five-year period
is based on a recognition that the longer the lapse of time between
publication and registration the less likely the facts are to be
reliable.
Under 410(c) a certificate is to "constitute prima facie
evidence of the validity of the copyright and of the facts stated
in the certificate." The principle that a certificate represents
prima facie evidence of copyright validity has been established
in a long line of court decisions. What this means is that the
plaintiff should not ordinarily be forced in the first instance
to provide all of the multitude of facts that underline the validity
of copyright unless the defendant, by effectively challenging them,
shifts the burden of proof to the plaintiff.
- 11:9 -
Section 410(d) makes the effective date of registration
the day when the application, deposit, and fee ("which are later
determined by the Register of Copyrights or by a court of competent
jurisdiction to be acceptable for registration") have all been
received. Where the three necessary items are received at different
times, the date of receipt of the last of them is controlling regardless
of when the Copyright Office acts on the claim.
REGISTRATION AS PREREQUISITE TO INFRINGEMENT SUIT (Section 411)
This section restates the present statutory requirement
that registration must be made before a suit for copyright infringement
is instituted. A copyright owner who has not registered his claim
can have a valid cause of action against someone who has infringed
his copyright, but he cannot enforce his right in the courts until
he has registered his claim.
The new law also provides that a rejected claimant who
has properly applied for registration may bring an infringement suit
if he serves notice on the Register, thus allowing the Register to
intervene in on the issue of registrability. The Register
has 60 days to enter. If the Register fails to join the action
this will "not deprive the court of jurisdiction to determine that
issue."
Subsection (b) is intended to deal with the special situation
presented by works that are being transmitted "live" at the same
time they are being fixed in tangible form for the first time. Under
certain circumstances, where the would be infringer has been given
advance notice that copyright is being claimed in the work, an
injunction could be obtained to prevent the unauthorized use of the
material included in the "live" transmission.
REGISTRATION AS PREREQUISITE TO CERTAIN REMEDIES (Section 412)
This section offers an incentive to register; it allows
the owner of a registered work a broader range of remedies. Remedies
available are tied to the date of registration. If an infringement
occurred before registration, the copyright owner would be entitled
to the ordinary remedies of injunction and actual damages. If,
however, infringement occurred after registration, the owner would
be entitled to the extraordinary remedies of attorney's fees and
statutory damages.
- 11:10 -
This provision, which would apply to both domestic and
foreign works, is subject to a grace period. If the work is registered
within three months of first publication, there is no loss of rights.
Full remedies could be recovered for any infringement begun during
the three months after publication if registration is made before
that period has ended. The legislative reports indicate that this
exception (the three-month grace period) was needed to take care of
newsworthy or suddenly popular works which may be infringed almost as
soon as they are published, before the owner has had a reasonable
opportunity to register his claim.
- 12:1 -
CHAPTER TWELVE
MANUFACTURING REQUIREMENTS AND IMPORTATION
OF COPIES OR PHONORECORDS
[Sections 601-603]
Prior to the Copyright Act of 1891 no protection was
afforded to foreign authors. Thus, the works of English authors
were widely pirated in the United States. WheR a movement was
started for protection for foreign authors one of the conditions
mentioned was that their works must be printed in the United States
to be protected here.
The Act of March 3, 1891 is commonly known as the "International
Copyright Act." It contained a complicated compromise which the
Second Supplementary Report of the Register characterizes as having
"the effect of giving U.S. copyright protection to foreign authors
with one hand and taking it away from many of them with the other."
The Register was referring to the manufacturing clause, which was the
price of support for the printers, book manufacturers and the labor
unions in the printing trades.
The manufacturing clause in the 1909 law had its most
direct impact upon English language books and periodicals by U.S.
authors or by foreign authors who are not covered by the U.C.C.
Books and periodicals of "foreign origin" in a language
other than English are exempted from the manufacturing requirements.
The term "of foreign origin", is limited however, and if the first
edition of a foreign language work is by a U.S. author and is printed
abroad, it is denied U.S. copyright protection. Such a work cannot
even be eligible for "ad interim copyright" -- this is available
only to a book or periodical in the English language.
The 1961 Report of the Register favored elimination of
the manufacturing clause as a condition of copyright protection.
However, as the 1965 Supplementary Report notes, the book manufacturing
industry took a very strong position against complete elimination of
the manufacturing requirements. The Supplementary Report notes
that it was apparent for the sake of the revision program that a
compromise on this issue would be necessary.
- 12:2 -
MANUFACTURING REQUIREMENTS - (Section 601)
Under the new act, this section is scheduled to be phased
out completely on July 1, 1982. Until that time, the manufacturing
clause will continue, under a considerably limited scope. The
Register is to report on the effect of this phase-out by July, 1981
so that Congress may reexamine the issue. It would apply only to "a
work consisting preponderantly of nondramatic literary material that
is in the English language and is protected under this title." It
does not cover: (a) dramatic, musical, pictorial or graphic works; (b)
foreign language, bilingual, or multilingual works; (c) material in
the public domain; or (d) works consisting preponderantly of material
that is not subject to the manufacturing requirement.
The legislative reports give the following examples:
1.
Where the literary material in a work consists
merely of a foreword or preface, and captions,
headings, or brief descriptions or explanations of
pictorial, graphic or other nonliterary material,
the manufacturing requirement does not apply to the
work in whole or in part. In such a case, the
non-literary material clearly exceeds the literary
material in importance, and the entire work is free
of the manufacturing requirement.
2.
Where a work contains pictorial, graphic or other
nonliterary material which merely illustrates a
textual narrative or exposition, the nondramatic
literary material is subject to the manufacturing
requirement regardless of the relative amount of
space occupied by each kind of material. In such a
case the narrative or exposition plainly exceeds in
importance the nonliterary material. However, only
the portions of the work consisting of copyrighted
nondramatic literary material in English are required
to be manufactured in the United States or Canada.
The illustrations may be manufactured elsewhere
without affecting their copyright status.
The manufacturing requirement does not apply where "the
author of any substantial part" [of the work] is neither a citizen
nor domiciliary of the United States. In other words, the manufacturing
requirement would not apply to a work of which any substantial
•
part was written by a foreign author. It would apply only to works
of U.S. authors and only then when no co-author was foreign. Moreover,
works by American nationals domiciled abroad for at least a year
preceding the date when importation is sought would be exempted.
- 12:3 -
Works made for hire. Section 601(b)(1) makes it clear
that the exemption does not apply unless a substantial part of
the work was prepared for an employer or other person who is not a
national or domiciliary of the United States, or a domestic corporation
or enterprise. The reference to "a domestic corporation or enterprise",
the reports say, is intended to include a subsidiary formed by
the domestic corporation or enterprise primarily for the purpose of
obtaining the exemption.
Section 601 adopts a proposal put forward by various
segments of the U.S. and Canadian printing industries recommending
an exemption for copies manufactured in Canada. The legislative
reports note that the wage standards in Canada are substantially
comparable to those in the U.S. and, therefore, equal treatment
arguments were persuasive. Also persuasive, however, was the
"Toronto Agreement." Indeed this is noted in the Conference Report.
Canada is specifically exempted from the provisions
of Section 601... This exemption is included as a
result of an agreement reached in Toronto in 1968...
Upon addition of the Canadian exemption in American
legislation, that agreement contemplates Canadian
adoption of the Florence Agreement and prompt joint
action to remove high Canadian tariffs on printed
matter and the removal of other Canadian restraints
on printing and publishing trade between the two
countries, as well as reciprocal prompt action by U.S.
groups to remove any remaining U.S. barriers to Canadian
printed matter. The Canadian exemption is included in
Section 601 with the expectation that these changes
will be made.
The Conference Report goes on to note that if for any
reason Canadian trade groups and the Canadian Government do not
move promptly in reciprocation with the U.S. trade groups and the
U.S. government to remove such tariff and other trade barriers,
Congress would be expected to remove the Canadian exemption.
- 12:4 -
Limitations on Importation and Distribution of Copies Manufactured
Abroad (Subsection (b))
The basic objective of section 601 is to induce manufacture
of an edition in the U.S. if more than 2,000 copies are to be imported
or distributed in this country. Subsection (a) therefore provides
in general that "the importation into or public distribution in
the United States" of copies not complying with the manufacturing
requirement is prohibited. Subsection (b) then sets out the exceptions
and clause (2) fixes the limit of importation at 2,000 copies. The
exemption is intended to allow an author or publisher to test the
potential market for the work in America before an entire American
edition is printed.
Additional exceptions to the copies affected by the manufacturing
requirement are set out in clauses (3) through (7) of subsection
(b). Clause (3) permits importation of copies for governmental use,
other than in schools, by the U.S. or by any state or political
subdivision of a state. Clause (4) allows importation for personal
use of "no more than one copy of any work at any one time." It also
exempts copies in the baggage of persons arriving from abroad and
copies intended for the library collection of nonprofit scholarly,
educational, or religious organizatons. Braille copies are exempted
under clause (5), and clause (6) permits the public distribution in
the U.S. of copies allowed entry by the other clauses of that subsection.
Clause (7) covers cases in which an individual American author has,
through choice or necessity arranged for publication of his work by a
foreign rather than a domestic publisher.
Defining the Manufacturing Requirement (Subsection (c))
As the legislative reports note, restrictions to be imposed
on foreign typesetting or composition posed a difficult problem.
A number of publishers, under what they regard as a loophole in the
present law, have been having their manuscripts typeset abroad,
importing "reproduction proofs", then printing their books from
offset plates "by lithographic process...wholly performed in the
U.S." The language in the 1909 law is ambiguous; the practice had
been considered to have support from the Copyright Office since it
registered such claims under its rule of doubt.
The book publishers strenuously opposed any definition that
would have closed this so-called loophole or would interfere with
their use of new techniques, including use of imported computer
tapes for composition here. Subsection (c) is a compromise between
the book publishers and authors and the typographical firms and
printing trade unions.
- 12:5 -
Under subsection (c) the manufacturing requirement is confined
to the following processes:
1.
Typesetting and platemaking "where the copies are
printed directly from type that has been set, or
directly from plates made from such type."
2.
The making of plates "where the making of plates by
a lithographic or photoengraving process is a final
or intermediate step preceding the printing of copies."
3. In all other cases, the "printing or other final
process of producing multiple copies and any binding
of the copies."
Thus, there is nothing to prevent the importation of reproduction
proofs, however prepared, as long as the plates from which the
copies are printed are made in the U.S. and are not themselves
imported. Also, computer tapes from which plates can be prepared here
could be imported. However, regardless of the process involved, the
actual duplication of multiple copies, together with any binding, are
required to be done in the United States or Canada.
Effect of Noncompliance (Subsection (d))
Subsection (d) makes it clear that compliance with the
manufacturing requirement no longer constitutes a condition of
copyright protection; moreover, the consequences of noncompliance
would affect only reproduction and distribution rights. The present
"ad interim" copyright limitations and registration requirements are
eliminated.
If copies are imported or distributed in violation of
section 601, the copyright owner is not precluded from making and
distributing phonorecords of the work, or from making derivative
works (including dramatizations and motion pictures), or from performing
or displaying the work publicly. Even the rights to reproduce copies
are not lost in cases of violation, although their enforcement is
limited against certain infringers.
An infringer of the exclusive rights of making and distributini
copies would be given a complete defense if: (1) the copyright
owner authorized or acquiesced in an importation or public distribution
of copies in violation of the manufacturing requirement, and (2)
the infringing copies were manufactured in the United States. The
burden of proof is on the infringer.
Subsection (d) also provides, in effect, that a copyright
owner can reclaim his full exclusive rights by manufacturing an
edition in the U.S. and registering his claim in the Copyright
Office.
- 12:6 -
INFRINGING IMPORTATION - (Section 602)
This section has nothing to do with the manufacturing
requirement in section 601, rather it deals with two situations--import-
ation of "piratical" articles (copies or phonorecords made without
any authorization of the copyright owner), and unauthorized importation
of copies or phonorecords that were lawfully made. The general approach
of this section is to make unauthorized importation an act of infringement
in both cases, but to permit the Customs Service to prohibit importation
of only "piratical" articles.
Subsection (a) states that unauthorized importation is
an infringement but then spells out three exceptions: 1. importation
under the authority or for the use of the U.S. government or of any
State or political subdivision of a State, but not including copies
or phonorecords for use in schools or copies of any audiovisual work
imported for purposes other than archival use; 2. importation, for
the private use of the importer and not for distribution, by any
person with respect to no more than one copy or phonorecord of
any
one work at any one time, or by any person arriving from outside the
U.S. with respect to copies or phonorecords forming part of such
person's personal baggage; or 3. importation by or for an organization
operated for scholarly, educational, or religious purposes and not
for private gain, with respect to no more than one copy of an audiovisual
work solely for its archival purposes, and no more than five copies
or phonorecords of any other work for its library lending or archival
purposes, unless the importation of such copies or phonorecords is
part of an activity consisting of systematic reproduction or distribution,
engaged in by such organization in violation of the provisions of
section 108(g)(2).
ENFORCEMENT OF IMPORTATION PROHIBITIONS - (Section 603)
The importation prohibitions of both sections 601 and
602 would be enforced under section 603. Subsection (a) authorizes
the Secretary of the Treasury and the U.S. Postal Service to make
regulations for this purpose, and subsection (c) provides
for
the
disposition of excluded articles.
Subsection (b) deals only with the prohibition against
importation of "piratical" copies or phonorecords, and is aimed
at solving problems that have arisen under the 1909 statute. Since
the Customs Service is usually not in a position to make determinations
as to whether particular articles are "piratical," this subsection
allows the Customs regulations to require the person seeking exclusion
either to obtain a court order enjoining importation, or to furnish
proof of his claim and to post bond.
- 13:1 -
CHAPTER THIRTEEN
COPYRIGHT INFRINGEMENT AND REMEDIES
[Sections 501-510]
INFRINGEMENT OF COPYRIGHT (Section 501)
This section contains a statement of what constitutes
an infringement. Subsection (a) identifies an infringer as someone
who "violates any of the exclusive rights of the copyright owner
as provided by sections 106 through 118" or "who imports copies
or phonorecords in violation of section 602."
Because section 201(d) establishes the principle of divis-
ibility of copyrights, there was a need to provide protection for the
rights of all copyright owners and to avoid a multiplicity of suits.
Subsection (b), the reports note, enables the owner of a particular
right to bring an infringement action in that owner's name alone,
while at the same time insuring (to the extent possible) that the
other owners whose rights may be affected are notified and given a
chance to join the action.
501(b) empowers the "legal or beneficial owner" of an
exclusive right to institute a suit for "any infringement of that
particular right committed while he is the owner of it." A "beneficial
owner" is defined in the legislative reports as one who has parted
with his legal title in exchange for percentage royalties based
on sales or license fees.
INJUNCTIONS (Section 502)
Courts are given discretionary power to grant injunctions
and restraining orders, whether "preliminary," "temporary," etc.
to prevent or stop infringements.
IMPOUNDING AND DISPOSITION OF INFRINGING ARTICLES (Section 503)
Courts are given the power to impound allegedly infringing
articles during the time the action is pending. The court is also
empowered to order the destruction or other disposition of articles
found to be infringing.
In both cases the articles affected include "all copies
or phonorecords" and also "all plates, molds, matrices, masters,
tapes, film negatives, or other articles by means of which such
copies or phonorecords may be reproduced."
- 13:2 -
DAMAGES AND PROFITS (Section 504)
The legislative reports state that this is the corner-
stone of the remedies sections and of the new law as a whole. Two
basic aims of the section are: (1) to give the courts specific
unambiguous directions concerning monetary awards, and at the same
time, (2) to provide the courts with reasonable latitude to adjust
recovery to the circumstances of the case.
Subsection (a) establishes the liability of the infringer
for either "the copyright owner's actual damages and any additional
profits of the infringer," or statutory damages. Recovery of actual
damages and profits, under subsection (b), or of statutory damages,
under subsection (c), is alternative and for the copyright owner
to elect.
This section recognizes that an award of damages serves
a different purpose from an award of profits--it provides: "The
copyright owner is entitled to recover the actual damages suffered
by him or her as a result of the infringement, and any profits
of the infringer that are attributable to the infringement and are
not taken into account in computing the actual damages." Damages
would be paid to compensate the copyright owner for his losses caused
by the infringement, while an award of profits is intended to prevent
the infringer from unjustly benefiting from his wrongful act.
If profits alone are used as a measure of the plaintiff's damages,
however, only one or the other could be awarded. Where the copy-
right owner has suffered damages not reflected in the infringer's
profits, or where there have been profits attributable to the copy-
righted work but not used as a measure of damages, both may be
awarded.
Subsection (c) covers statutory damages. It provides
that the plaintiff's election to recover statutory damages may
take place at any time during the trial before the court has rendered
its final judgment.
Basic provisions:
1. Generally, where the plaintiff elects to recover
statutory damages, the court is obliged to award
between $250 and $10,000. The court may exercise
its discretion within that range, but unless
one of the exceptions in clause (2) is applicable,
it cannot make an award of less than $250 or more
than $10,000.
- 13:3 -
2.
An award of minimum statutory damages may be
multiplied if separate works and separately
liable infringers are involved in the suit;
however, a single award in the $250-$10,000 range
is to be made "for all infringements involved in
the action."
A single infringer of a single work is liable
for a single amount no matter how many acts of
infringement are involved and regardless of
whether the acts were separate, isolated, or
occurred in a related series.
3.
Where the suit involves infringement of more
than one separate and independent work, minimum
statutory damages must be awarded for each work.
An example is given in the legislative reports--if
one defendant has infringed three copyrighted
works, the copyright owner is entitled to statutory
damages of at least $750 and may be award up to
$30,000. Subsection (c)(1) makes it clear that
"all parts of a compilation or derivative work
constitute one work" for the purpose of assessing
damages. Moreover, although minimum and maximum
amounts are to be multiplied where multiple
"works" are involved, the same is not true with
respect to multiple copyrights, multiple owners,
multiple registrations, or multiple exclusive
rights. This is important since under a scheme
of divisible copyright, it is possible to have the
rights of a number of owners of separate "copyrights"
in a single "work" infringed by one act of a
defendant.
Clause (2) provides for exceptional cases in which the
maximum award could be raised to $50,000 and the minimum could be
reduced to $100. Courts are given discretion to increase statutory
damages in cases of willful infringement and to lower the minimum
where the infringer is innocent.
The innocent infringer provision is where the infringer
"was not aware and had no reason to believe that his or her acts
constituted an infringement of copyright." It was felt that this
provision offered adequate insulation to broadcasters and newspaper
publishers who are particularly vulnerable to this type of infringement
suit.
- 13:4 -
Also, there is a special clause dealing with the special
situation of teachers, librarians, archivists and public broad-
casters, and the nonprofit institutions of which they are a part.
Where such person or institution infringes copyrighted material
in the honest belief that what they were doing constituted fair
use, the court is precluded from awarding any statutory damages.
In these cases, the burden of proof with respect to the defendant's
good faith is said to rest on the plaintiff.
COSTS AND ATTORNEY'S FEES (Section 505)
This section leaves the award of costs and attorney's
fees (as part of the costs) entirely in the court's discretion.
Attorney's fees may be awarded to the prevailing party. An exception
to this section is where "the United States or an officer thereof" is
a party.
CRIMINAL OFFENSES (Section 506)
Four specific types of activities constitute a criminal
offense:
1.
Criminal infringement--infringement of "a copyright
willfully and for purposes of commercial advantage or
private financial gain";
2.
Fraudulent use of copyright notice--with fraudulent
intent, to place on an article a notice that the
defendant "knows to be false" or to publicly distribute
or import any article bearing such a notice;
3.
Fraudulent removal of copyright notice--also requires
fraudulent intent in removing or altering a notice;
4.
False representation--knowingly making a false
representation in connection with an application
for copyright registration.
This section provides for a fine, imprisonment or both.
There is a special provision applying to any person who
infringes willfully and for purposes of commercial advantage
the copyright in a sound recording or a motion picture. First
offense: fine of not more than $25,000 or imprisonment for not
more than one year, or both. For each subsequent offense, fine of
not more than $50,000 or imprisonment for not more than 2 years, or
both.
- 13:5 -
STATUTE OF LIMITATIONS (Section 507)
This section, which deals with both criminal proceedings
and civil actions, is substantially identical with section 115
of the 1909 law. It establishes a three year statute of limitations.
NOTIFICATION OF FILING AND DETERMINATION OF ACTIONS (Section 508)
This section is intended to establish a method for notifying
the Copyright Office and the public of the filing and disposition
of copyright cases. The clerks of the federal courts are to notify
the Copyright Office of the filing of any copyright actions and
of their final disposition. Courts are also to send a copy of the
written opinion if there is one. The Copyright Office is to make
these notifications a part of its public records.
SEIZURE AND FORFEITURE (Section 509)
This provision allows for the seizure and forfeiture
to the United States of all copies or phonorecords and all the
implements of reproduction, manufacture, or assemblage, used, or
intended for use or possessed with the intent to use in violation of
section 506(a) (criminal infringement).
Subsection (b) states that the applicable procedures
for seizures and forfeitures under Title 19 (customs) shall apply
to forfeitures and seizures under this section insofar as appropriate
and consistent with the terms of this section. For the items
described in subsection (a), however, the actions necessary are
to be performed by such officers, agents or other persons authorized
by the Attorney General rather than employees or officers of the
Treasury Department.
REMEDIES FOR ALTERATION OF PROGRAMMING BY CABLE SYSTEMS (Section 510)
This section allows a remedy for the alteration of or
substitution of programming by cable systems in violation of section
111(c)(3). The court may deprive the system of the compulsory
license for one or more of its distant signals for a period not
exceeding 30 days.
- 14:1 -
CHAPTER FOURTEEN
ADMINISTRATIVE PROVISIONS
[Chapter 7, Sections 701-710]
Chapter 7, entitled "Copyright Office," contains the
administrative or "housekeeping" provisions of the new law.
ADMINISTRATIVE PROCEDURE ACT (Section 701)
Section 701(d) makes the Copyright Office fully subject
to the Administrative Procedure Act (with one exception: under
706(b), reproduction and distribution of deposit copies would be
made under the Freedom of Information Act only to the extend permitted
by the Copyright Office regulations.
REGULATIONS (Section 702)
Section 702 states that the Register of Copyrights is
authorized to establish regulations "not inconsistent with law."
All regulations are subject to the approval of the Librarian of
Congress.
EFFECTIVE DATE OF ACTIONS IN THE COPYRIGHT OFFICE (Section 703)
This section provides that where an action is to be performed
on a specified date and that date falls on a Saturday, Sunday,
holiday, or other non-business day within the District of Columbia,
the action may be taken on the next succeeding business day. It also
provides that the action is effective as of the date when the period
expired.
RETENTION AND DISPOSITION OF ARTICLES DESPOSITED IN THE COPYRIGHT
OFFICE (Section 704)
As the Reports of the Register indicate, a practical
problem of concern to both the Office and the copyright bar concerns
the storage limitations of the Copyright Office. Also mentioned was
the need to retain copies and phonorecords for the identification of
works in which a claim to copyright has been registered. The legis-
lative reports note that aside from its indisputable utility to
future historians and scholars, a substantially complete collection
of both published and unpublished deposits (other than those selected
by the Library) would avoid the many difficulties encountered when
copies needed for identification in connection with litigation or
other purposes have been destroyed.
- 14:2 -
The basic policy behind section 704 is copyright deposits that
should be retained as long as possible. The Register and the Librarian
of Congress, however, are empowered to dispose of deposits under
appropriate safeguards when they jointly decide that it has become
necessary to do so.
•
Section 704(a) makes it clear that any copy or phonorecord,
or identifying material deposited for registration, whether registered
or not, becomes "the property of the United States Government."
The legislative reports state that this means that the copyright
owner or person who made the deposit cannot demand its return as a
matter of right, even in rejection cases.
Section 704(b) deals in the first instance with published
works. It makes all deposits available to the Library of Congress
"for its collections, or for exchanges or transfer to any other
library."
With respect to unpublished works, the Library is authorized
to select any deposit for its own collections or for transfer to the
National Archives or to a federal records center.
704(c) authorizes the Register to make "facsimile" copies
of all or any part of the material deposited under section 408
and to make such reproductions part of the Copyright Office records
of the registration. This is to be done before transferring or
otherwise disposing of the copies or phonorecords.
Subsection (d) deals with deposits not selected by the
Library. It provides that they are to be retained under the control
of the Copyright Office "for the longest period considered practicable
and desirable" by the Register and the Librarian. The aim is to
preserve copyright deposits of all classes of material for as long
a period as is reasonably possible by any practical means of storage.
The 1965 Supplementary Report of the Register states the reference
to "government storage facilities" contemplates that "dead storage"
available in or out of Washington would be considered preferable
to outright destruction.
Because of their unique value and irreplaceable nature,
intentional destruction of unpublished works is prohibited during
their copyright term unless a facsimile reproduction has been made.
- 14:3 -
Subsection (e) establishes a new procedure whereby a
copyright owner can request retention of deposited material for
the full term of copyright. The Register is authorized to issue
regulations prescribing the fees for this service and the "conditions
under which such requests are to be made and granted."
COPYRIGHT OFFICE RECORDS (Section 705)
Subsection (a) requires the Register to keep records of
all deposits, registrations, recordations, and "other actions taken
under this title." The Register must also prepare indexes of all
such records.
Subsection (b) provides that these records and indexes,
as well as the deposits within the control of the Copyright Office,
be open to public inspection.
Subsection (c) provides that upon request and payment
of the prescribed fee, the office shall search its public records,
indexes, and deposits, and furnish a report of the information
they disclose.
COPIES OF COPYRIGHT OFFICE RECORDS (Section 706)
Subsection (a) provides that copies may be made of any
public records or indexes. It also provides for additional certificates.
Subsection (b) provides that copies or reproductions
of deposited articles which are under the Copyright Office's control
shall be furnished only under conditions specified in its regulations.
COPYRIGHT OFFICE FORMS AND PUBLICATIONS (Section 707)
(a) Catalog of Copyright Entries. Sections 210 and
211 of the 1909 law require that an indexed catalog
of all copyright registrations be printed at periodic
intervals, and that it be distributed to customs
and postal officials and offered for sale to the
public.
The Reports of the Register noted that this
catalog is extremely expensive to prepare and that
some parts of it are used much less than others.
The 1961 Report suggested that the purposes of the
catalog might be served better and at less cost if
the Register were given discretion to decide when
and in what form the various parts should be issued.
- 14:4
-
Thus, the new law retains the 1909 law's
basic requirement that the Register compile and
publish catalogs of all copyright registrations at
periodic intervals, but provides for "discretion to
determine on the basis of practicability and usefulness
the form and frequency of publication of each particular
part."
As the legislative reports note, this will in
no way diminish the utility or value of the present
catalogs, and the flexibility allowed, coupled with
the use of new mechanical and electronic devices now
becoming available, will avoid waste.
(b) Other publications. Register is to furnish application
forms and general informational material. The Register
is also authorized to publish other material that
may be of value to the public.
COPYRIGHT OFFICE FEES (Section 708)
(1)
for the registration of a copyright claim or
a supplementary registration under section
408, including the issuance of a certificate
of registration, $10;
(2)
for the registration of a claim to renewal
of a subsisting copyright in its first term
under section 304(a), including the issuance
of a certificate of registration, $6;
(3)
for the issuance of a receipt for a deposit
under section 407, $2;
(4)
for the recordation, as provided by section
205, of a transfer of copyright ownership or
other document of six pages or less, covering
no more than one title, $10; for each page
over six and each title over one, 50 cents
additional;
(5)
for the filing, under section 115(b), of a
notice of intention to make phonorecords,
$6;
(6)
for the recordation, under section 302(c),
of a statement revealing the identity of an
author of an anonymous or pseudonymous work,
or for the recordation, under section
302(d), of a statement relating to the
death of an author, $10 for a document of
six pages or less, covering no more than one
title; for each page over six and for each
title over one, $1 additional;
- 14:5 -
(7)
for the issuance, under section 601, of an import
statement, $3;
(8)
for the issuance, under section 706, of an additional
certificate of registration, $4;
(9)
for the issuance of any other certification, $4;
the Register of Copyrights has discretion, on the
basis of their cost, to fix the fees for preparing
copies of Copyright Office records, whether they are
to be certified or not;
(10)
for the making and reporting of a search as provided
by section 705, and for any related services, $10
for each hour or fraction of an hour consumed;
(11) for any other special services requiring a substantial
amount of time or expense, such fees as the Register
of Copyrights may fix on the basis of the cost of
providing the service.
Subsection (b) states that except for the possibility
of waivers in "occasional or isolated cases involving relative
small amounts," the Register is to charge fees for services rendered
to other government agencies.
Subsection (c) provides that the Register may, in accordance
with regulation, refund any sum paid by mistake or in excess of the
required fee. However, before refunding in a rejection case, the
Register "may deduct all or any part of the prescribed registration
fee to cover the reasonable administrative costs of processing
the claim."
DELAY IN DELIVERY CAUSED BY DISRUPTION OF POSTAL OR OTHER SERVICES
(Section 709)
This section authorizes the Register to issue regulations
to permit the acceptance of material which is delivered after the
close of the prescribed period if the delay was caused by a general
disruption or suspension of postal or other transportation or communications
services.
VOLUNTARY LICENSING FOR REPRODUCTIONS FOR THE USE OF THE BLIND AND
PHYSICALLY HANDICAPPED (Section 710)
Section 710 directs the Register, after consulting with
the Chief of the Division for the Blind and Physically Handicapped
and other appropriate officials of the Library of Congress, to
establish, by regulation, forms and procedures by which copyright
owners of certain specified categories of nondramatic literary works
may voluntarily grant to the Library a license to reproduce and
distribute copies or phonorecords of the work solely for the use of
the blind and physically handicapped.
- A1:1 -
APPENDIX
ONE
OVERVIEW IN OUTLINE FORM
THE COPYRIGHT ACT OF 1976 (Public Law 94-553, 90 Stat. 2541)
I. Introduction and Background
A.
Copyright--U.S. copyright laws stem from Article I, Section
8 of the Constitution. A copyright is a statutory grant of
certain rights for limited times.
B.
Need for a new copyright law
1.
Last major revision of the Copyright Law, the Act
of 1909, was based on the printing press as the
prime disseminator.
2.
Development of new technologies--wide range of new
techniques for communicating, e.g., cable television,
communications satellites, computers, etc.
3. The "copyright revision program" was culminated with
the signing of the new law on October 19, 1976; with
certain exceptions, will take effect on January 1,
1978. [Transitional and Supplementary Provisions,
Section 102.]
a.
New law makes a number of fundamental changes;
some so profound that they mark a shift in direction
for the very philosophy of copyright itself.
b.
Compromise was the key word; practically every
provision is a product of at least one compromise.
c. New technology not completely dealt with--e.g.,
computer programs and computerized data bases.
Recognized as copyrightable works, Sections 101 and
102(a) but protection is frozen to law in effect on
December 31, 1977, Section 117. Congress is
awaiting CONTU's recommendations.
- A1:2 -
C. Legislative History
1.
Senate Report 94-473
2.
House Report 94-1476 (NOTE: in connection with this
report, reference must be made to both the "Corrections"
printed in the Congressional Record of September 21, 1976
at pp. 10727-28, reprinted as Copyright Office Announcement
ML-130 and additional corrections, amplifications and
modifications announced during the House Floor Debates
printed in the Congressional Record of September 22,
1976, reprinted in Copyright Office Announcement ML-132.)
3. Conference Report: House Report 94-1733
II. Major Provisions
A. Preemption of state and common law copyright protection--
Section 301
1.
Single national system for all works within the subject
matter of copyright fixed in a copy or phonorecord
2.
Protection begins on the date of creation
3. Exception: sound recordings fixed before February 15,
1972--Section 301(c)
B. Duration
1. For works created after the effective date of the
new law--Section 302
a.
Basic term: life of the author plus fifty years
b.
Joint work: life of the last surviving author
plus fifty years
c.
Anonymous, pseudonymous, and works made for hire:
75 years from first publication or 100 years from
creation, whichever is shorter
d.
Copyright Office to keep records
e. System of presumptions established to take care
of the situation in which a user cannot determine
the date of the author's death
- A1:3 -
2. For preexisting works under common law protection
on the effective date of the new law--Section 303
a.
Same terms as in Section 302
b.
To assure that all works are given a "reasonable"
term, guarantee of 25 years of protection. If work
published before 2002, term of protection extended
another 25 years.
3. 'Duration of subsisting copyrights--Section 304 (maximum
of 75 years)
a.
For works in their first term on January 1, 1978
28 years for the first term and provision for a
renewal term of 47 years
b.
For works already in their second, renewal term,
including copyrights whose renewal terms have
been extended, the renewal term is automatically
extended to make a total of 75 years--Transitional
and Supplementary Provisions, Section 102
4. All terms expire on December 31st--Section 305
C. Ownership
1.
Fountainhead of copyright is the author, and copyright
ownership in the first instance belongs to the author--
Section 201(a)
2.
Works made for hire--Sections 201(b) and definition in
Section 101
3.
Divisibility--Section 201(d)(2): first statutory recognition.
Any of the exclusive rights that go to make up a copyright
can be transferred and owned separately. The definition of
"transfer of ownership" in Section 101 makes it clear
that the principle of divisibility applies whether or not
the transfer is "limited in time or place of effect."
4.
Transfers of copyright ownership must be in writing
and signed by the owner of the rights conveyed or by
such owner's duly authorized agent
5. Documents to be recorded in the Copyright Office--
Sections 204, 205
- A1:4 -
D. Termination of Transfers and Licenses
1. Grants by the author (other than by will) made
on or after January 1, 1978 of exclusive or nonexclusive
rights arising under the new law but not including
works made for hire may be terminated during a five year
period beginning at the end of 35 years from the
date of the grant. If, however, the grant covers the
right of publication, the termination period begins
35 years from the date of publication or 40 years
from the date of the grant, whichever is shorter.
See Section 203 and House Report 94-1476, pp. 124-
128
a.
Termination may be effected by serving a
written notice no less than two nor more
than 10 years before termination is to take
effect. Notice must comply with Copyright
Office regulations and a copy of the notice
must be recorded in the Copyright Office before
the effective date of termination
b.
All rights revert to those with a right to
terminate except that derivative works prepared
before termination may continue "to be utilized"
under the terms of the grant
c.
Rights vest on the date that the notice is
served
d.
"Termination of the grant may be effected
notwithstanding any agreement to the contrary,
including any agreement to make a will or to
make any further grant." Section 203(a)(5)
2. Grants by the author or grants executed by those
beneficiaries of the author who could claim renewal
under the present law may be terminated at the
end of 56 years from the date copyright was originally
secured or beginning on January 1, 1978, whichever
is later. See Section 304(c) and House Report
94-1476 pp. 140-142
a. Does not apply to works made for hire
- A1:5 -
b. Applies only to grants made before January
1, 1978
E.
Scope of Exclusive Rights--Section 106 sets forth five
basic rights. Rights are cumulative and to some extent
overlap
F.
Limitations on the rights of copyright owners
1. Doctrine of Fair Use--generally speaking, copying
without permission from, or payment to, the copyright
owner is allowed where the use is reasonable and
not harmful to the rights of the copyright owner--
Section 107
a.
Four factors to be considered are included
b.
Legislative reports make it clear that Section
107 as drafted is intended to restate present
judicial doctrine; it is not intended to
change, narrow or enlarge it in any way
c. Guidelines for educational use of Print Material
and Music--see pp. 68-72 of House Report
94-1476 and correction in Congressional Record
of September 22, 1976.
2. Reproduction by Libraries and Archives--Section
108. For Inter-Library Loan Guidelines see Conference
Report
3.
Computer and data base uses--Section 117. Recognizes
computer programs and data bases as copyrightable
subject matter but freezes protection respecting
use in automatic storage and retrieval systems
4.
Compulsory licenses [A compulsory license is a
device allowing use of the copyrighted work without
the owner's permission but guaranteeing remuneration
for the owner]--new law has four
a.
Compulsory license for making and distributing
phonorecords embodying nondramatic musical
compositions--Section 115
b.
Public Performance by means of coin-operated
phonorecord players--Section 116
- A1:6 -
c.
Secondary transmissions--Section 111
d.
Use
of published nondramatic musical works
and pictorial, sculptural and graphic works
by noncommercial broadcasters--Section 118
e. Creation of a Copyright Royalty Tribunal
(Chapter 8) to determine the reasonable terms
and rates of royalty payments under Section
118, to distribute the royalties collected
under Sections 111 and 116, and to resolve
certain disputes. Also to periodically review
the royalty rates of all four compulsory
licenses
G. Formalities: notice, deposit and registration. Relaxed,
and more amenable to international standards
1.
Notice--Sections 401-406: preserve the requirement
for a notice on copies that are publicly distributed
anywhere but substantially ameliorate the effects of
accidental or even deliberate errors or omissions.
Subject to certain safeguards for innocent infringers,
protection would not be lost by the complete omission of
the notice from large numbers of copies or from a whole
edition, if registration for the work is made before or
within 5 years after such publication and a reasonable
effort is made to add notice to copies or phonorecords
publicly distributed in the U.S. after the omission is
discovered
2.
Deposit and Registration--Sections 407-412
a.
Registration and deposit are now separate formalities
which could and would usually be combined
b.
Deposit for the Library of Congress of copies or
phonorecords published with a notice of copyright
in the United States--Section 407. Failure to
deposit after written demand makes the copyright
owner liable for the cost of the copies and fines.
- A1:7 -
c. Registration permissive, Section 408, but
is a prerequisite to an infringement suit
(Section 411)
3. Manufacturing requirement--Section 601. Substantially
liberalized, scheduled to be phased out on July 1,
1982 [Register to report on the effect of this by July,
1981 so that Congress may reexamine this issue].
a.
Applies only to "a work consisting preponderantly
of nondramatic literary material that is in
the English language" and is protected by Title
17
b.
Does not apply where the author of any substantial
part of the work is neither a citizen nor
domiciliary of the U.S.
c.
Works of American national domiciled abroad
for at least one year preceding the date when
importation is sought or distribution in the
U.S. desired are exempted
d.
Requirement of U.S. manufacture is satisfied
by manufacture in Canada
e. Present importation limit of 1500 copies
expanded to 2000
H. Remedies--Chapter 5, Sections 501-509
1.
Definition of an infringement, Section 501
2.
Injunctions, Section 502
3.
Impounding and disposition of infringing articles,
Section 503
4.
Damages and profits, Section 504
a.
Actual damages, Section 504(6)
b.
Statutory damages, Section 504(c)
1.
Not less than $250 nor more than $10,000
2.
Willfull - in court's discretion may
increase award to not more than $50,000
- A1:8 -
3. Innocent infringer
(a)
General-court may, in its
discretion, reduce to not
less than $100
(b)
Special-employee or agent
of a nonprofit educational
institution, library, or archives
itself, or public broadcasting
entity or an employee of such
entity: court shall remit
statutory damages where infringer
believed and had reason to
believe the use was fair
c. Must elect between actual and statutory damages
5. Attorney's fees, Section 505
6.
Criminal provisions, Section 506
7.
Alternation of programming by cable systems, Section 510
APPENDIX TWO
THE 1909 ACT VS. THE 1976 ACT ( A COMPARISON)
SUBJECT
MATTER
Act of March 4, 1909
Protects "writings" of an author. Writing
has been interpreted as requiring fixation
in a tangible form and a certain minimum
amount of original, creative author-
ship. [Section 4]
14 classes of works enumerated:
Class A - Books, including
composite and cyclopedic
works
Class B - Periodicals, in-
cluding newspapers
Class C - Lectures, sermons,
addresses (prepared for
oral delivery)
Class D - Dramatic or
dramatico-musical
compositions
Class E - Musical compositions
Class F - Maps
Class G - Works of art; models
or designs for works of art
Class H - Reproductions of a
work of art
Class I - Drawings of plastic
works of a scientific or
technical character
Class J - Photographs
Class K - Prints and
pictorial illustrations
including prints or
Act of October 19, 1976
Protects "original works of authorship which
are fixed in a copy (material object, other
than a phonorecord, from which the work can
be perceived, reproduced, or otherwise
communicated, either directly or with the
aid of a machine or device) or a phono-
record.
[Sections 102(a), 301, 101]
7 classes of works enumerated:
(1)
literary works
(2)
musical works, including any accompanying
words
(3)
dramatic works, including any
accompanying
music
(4)
pantomimes and choreographic works
(5)
pictorial, graphic, and sculptural
works
(6)
motion pictures and other audio-
visual works
(7) sound recordings.
[Section 102(a)]
The Register of Copyrights to specify
classification for registration purposes only.
Classes will be:
Class TX - for claims in nondramatic
literary works, other than audiovisual
works, expressed in words, numbers or
other verbal or numerical symbols or
indicia.
Class PA - for claims in musical
works, including any accompanying
STANDARDS OF
COPYRIGHT-
ABILITY
labels used for articles
of merchandise
Class L - Motion picture
photoplays
Class M - Motion-pictures
other than photoplays
Class N - Sound recordings
[Section 5]
"New versions"--"compilations,
abridgments, adaptations,
arrangements, dramatizations,
translations or other new
versions when produced
with the consent of the
copyright owner."
[Section 7]
Product of case law. Work
must represent an appreciable
amount of original, creative
authorship. Original means that
the author produced it by his own
intellectual effort as distinguished
from copying from another.
words; dramatic works, including any
accompanying music; pantomimes;
choreographic works; and motion
pictures and other audiovisual works.
Class VA - for claims in pictorial,
graphic, and sculptural works.
Class SR - for claims in works
resulting from the fixation of a
of a series of musical, spoken,
or other sounds, but not including
the sounds accompanying a motion
picture or other audiovisual work.
"Compilations and derivative works."
(Derivative work is defined as
every copyrightable work that
employs preexisting material
or data.) Consent of the copy-
right owner is not a condition of
protection; copyright protection
"does not extend to any part of
the work" in which the pre-
existing material "has been used
unlawfully." [Section 103]
Legislative reports accompanying
Public Law 94-553 indicate that the
standards of copyrightability remain
unchanged.
Act of 1909
The following works are eligible
for copyright protection in the
United States:
1.
Works by United States citizens;
2.
Works by an author who is domiciled
in the U.S. on the date of first
publication;
3.
Works by an author who is a citizen
of a country with which the U.S.
has copyright relations;
4.
Works first published in a country
other than the U.S. that belongs to
the Universal Copyright Convention.
Works by authors that are stateless--
status of these works is unclear.
Copyright Office registers these claims
under its rule of doubt.
[Section 91
Copyright vests initially in the author
Joint works--There is no statutory provi-
sions but courts have held that, in the
absence of an agreement to the contrary,
joint authors will be deemed as tenants in
common. This means that each owns an un-
divided interest in the entire work and
each has an independent right to use or
license the entire work. There is no
definition of a "joint work" and courts have
defined this extremely broadly and eroded
the original concept.
ELIGIBILITY
OWNERSHIP
TRANSFER OF
OWNERSHIP
A2:03
Act of
1976
All unpublished
works are eligible for copy-
right protection in the United States.
If the work is published, it is eligible for U.S.
protection if one of the following applies:
1.
On the date of first publication, one
or more of the authors is a national or
domiciliary of the U.S, or is a national
or domiciliary, or sovereign authority of
a foreign nation that is a party to a copy-
right treaty of which the U.S. also is a
party;
2.
If on the date of first publication, one or
more of the authors is stateless;
3.
If the work is first published in the United
States or in a foreign nation that on the date
of first publication is a part of the Universal
Copyright Convention;
4.
If the work comes within the scope of a Presi-
dental proclamation.
[Section 104]
The original source of ownership is the author.
[Section 201(a)]
"The authors of a joint work are coowners of
copyright in the work." [Section 201(a)] A
work is defined as joint when the authors
collaborate with each other or if each of
the authors prepared his or her contribution
with the knowledge and intention that it would
be merged with the contributions of the other
authors as "inseparable or interdependent parts
of a unitary whole." [Section 101]
Act of
1909
Work made for hire--The statute provides
"the word 'author' shall include an
employer in the case of works made for hire."
[Section 26] There is no definition of a
work made for hire in the law. Courts,
however, have generally said a work prepared
by employee within the scope of his employ-
ment is a work made for hire. Important
factors include the right of the employer to
direct and supervise the manner in which the
work is performed, payment of wages or other
renumeration, and the existence of a
contractual arrangement concerning the
creation of the work. Many "commissioned"
works have been considered works made for hirE
Copyright said to be indivisible; transfer
of anything less than all of the rights was
a license. Only transfers of ownership
(assignments) had to be in writing and be
signed by the party granting the transfer.
[Section 28] Assignments should have been
recorded in the Copyright Office.
[Section 30]
OWNERSHIP
TRANSFER OF
OWNERSHIP
A2:04
Act of
1976
"In the case of a work made for hire,
the employer or other person for whom the
work was prepared is considered the author..."
[Section 201(b)]
Work made for hire is defined. For a commissioned
work or one prepared on special order, only certain
categories can be works made for hire. Also, the
parties must expressly agree to this in writing
and both parties must sign the document. [Section 101]
Copyright is made completely divisible. [Section 201
(d)(2)] Transfer of ownership is defined as an
assignment, mortgage, exclusive license of any of the
exclusive rights comprised in a copyright, whether
limited in time or place of effect
Transfers must
be in writing and signed by the party making the
transfer. [Section 2041 Transfers should be recorded
in the Copyright Office. [Section 2051
Transfers made by authors on or after January 1,
1978, otherwise than by will, may be terminated
after a certain period of time. The notice of
termination must be filed by certain specified
people no more than 10 nor less than 2 years
before the date of termination. The notice
must comply in form, content and manner of
service with regulations the Register
of Copyrights is to prescribe. [Section 2031
Termination of the grant may be effected not-
withstanding any agreement to the contrary
[Section 203(a)(5)]
SECURING
COPYRIGHT
PROTECTION
DURATION
Act of 1909
For unpublished compositions that are registr-
able, it is the act of registering a claim in
the Copyright Office that secures the copyright.
For published works it is the act of publi-
cation of the work in visually perceptible
copies with the required notice of copyright
that secures the copyright. The notice must
appear in a location specified by the law,
e.g., for a book either upon the title
page or the page immediately following.
[Section 20] Promptly after publication,
a claim should be registered in the Copy-
right Office. [Section 13] If a work
is published without an acceptable notice,
copyright protection is lost and cannot be
regained.
For
unpublished
works the term is exactly
28 years from the date of registration; a
renewal claim may be filed in the 28th year
in which case there is an additional term
of 28 years. Copyright protection will
expire either 28 or 56 years from the
exact date of registration.
For
published
works the term is same as
for unpublished works except the term is
measured from the date of first publi-
cation. [Section 24]
A2:05
Act of 1976
The act of creation and fixing the work
in a copy or phonorecord secures the
copyright. [Section 301]
For works created on or after January 1,
1978, the term of copyright will be:
1.
life of the author plus 50
years
2.
joint works--life of the last
surviving author plus 50 years
3. anonymous, pseudonymous works,
if the name of the author is not
revealed in Copyright Office
records, and works made for hire--
100 years from creation or 75
years from first publication,
whichever is shorter.
[Section 302]
Act of
1909
The required notice of copy-
right must be affixed to each
copy published or offered for
sale. [Section 10]
DURATION
NOTICE
WHEN
REQUIRED
A2:06
Act of 1976
For unpublished works created, but
not registered before January 1,
1978, the term of copyright is the
same as for works created after
January 1, 1978
except
there is a
guarantee of protection until
December 31, 2002. [Section 303]
For works under statutory (federal)
copyright protection on December 31,
1977--if copyright is renewed during
the last (28th) year then the term
will be 75 years. [Section 304]
All terms will run out on December
31st of the year in which they would
otherwise expire. [Section 305]
The required notice of copyright
must be placed on all visually
perceptible copies and phonorecords
of sound recordings that are
distributed to the public under the
authority of the copyright owner.
[Sections 401, 402]
FORM OF
NOTICE
PLACEMENT
Act of 1909
For works other than sound
recordings: the word "copyright,"
the abbreviation "Copr.", or
the symbol "0" accompanied by
the name of the copyright pro-
prietor and the year in which
copyright was secured by publi-
cation (or, in some cases,
registration). (There are certain
exceptions to this basic rule.)
[Section 19]
For sound recordings: the symbol
(P)
(the letter P in a circle),
the year of first publication of
the sound recording; and the name
of the owner of copyright in
the sound recording, or a
recognizable abbreviation or
generally known alternative
designation of the name.
[Section 19]
Specified by type of work - e.g.,
for a book or other printed
publication, upon the title page
or the page immediately following...;
For music, upon the title page or
first page of music...;
[Section 20]
For sound recordings - "reasonable
notice" of the claim to copyright
[Section 20]
A2:07
Act of 1976
For visually perceptible copies:
the symbol C) (the letter C in a circle),
or the word "copyright," or the abbre-
viation "Copr."; and the name of the
copyright owner, or a recognizable abbre-
viation or a generally known alternative
designation, and the year of first publi-
cation. [Section 401]
For sound recordings: same as the Act of
1909 [Section 402]
For visually perceptible copies -
"reasonable notice" of the copyright
claim. Copyright Office regulation
will include examples of reasonable
placement and affixation of the copy-
right notice. [Section 401]
For phonorecords of sound recordings -
same as the previous law -
[Section 402]
Act of
1909
If the notice is omitted or contains
a serious error, copyright is lost and
cannot be regained.
"Promptly after publication, two
copies of the best edition" are to
be deposited with an application and
fee of $6.00. Thus, registration
and deposit are joined.
[Sections 13, 215]
Failure to deposit the required
material after a "demand" by the
Register of Copyrights can result
in the copyright becoming void.
[Section 14]
Unpublished
works that are subject
to registration--one complete copy
of the work in legible notation must
be sent to the Copyright Office with a
properly completed application and a
fee of $6.00 Phonorecords are not
acceptable as deposit copies of the
underlying works they embody.
[Section 12, 215]
EFFECT OF
OMISSION OR
ERROR IN
NOTICE
DEPOSIT
REGISTRATION
A2:08
Act of
1976
If the notice is omitted or there is
a serious error, there is no effect as
long as the claim to copyright is
registered in the Copyright Office
before or within 5 years of publication
without the notice and a "reasonable effort"
is made to add the notice to copies that
are later distributed in the U.S.
[Section 405]
Within three months after the work has been
published with a copyright notice in the
U.S., the copyright owner should deposit
two complete copies or phonorecords of the
"best edition". "Best edition" will be
determined by the needs of the Library
of Congress. The Register of Copyrights, may
by regulation, exempt any categories of
material from this requirement, or require
deposit of only one copy or phonorecord with
respect to any category. Alternate forms of
deposit may also be allowed. [Section 407]
Failure to deposit the required material within
three months after the Register of Copyrights
makes a written demand will subject the
copyright owner to fines. [Section 407(d)]
Registration for both published and un-
published works is entirely permissive.
There are, however, substantial inducements
to register. [Section 408(a)]
Unpublished works--one complete copy or
phonorecord must be sent with the appro-
priate application form and a fee of $10.
[Sections 408, 709]
Act of 1909
Published compositions--two complete
copies of the best edition as first
published must be sent to the Copy-
right Office with a properly completed
application and a fee of $6.00. The
first published edition of a work
registered in unpublished form must be
registered again. [Sections 12, 13, 215]
The copyright owner of a musical
composition has the exclusive right
to make or license the first
recording of the work.
Whenever the copyright owner of
a musical composition has used
or permitted his work to be
recorded then anyone else may make
"similar use" by complying with the
compulsory license provisions of the
law.
REGISTRATION
COMPULSORY LIC-
ENSE TO USE
COPYRIGHTED
MUSICAL COMP-
OSITIONS ON
PHONORECORDS
A2:09
Act of 1976
Published works-two complete copies of
the best edition (or in the case of
works first published abroad or
contributions to collective works, one
complete copy) with an appropriate
application and a fee of $10 must
be sent to the Copyright Office.[Sections 408, 708]
The Register of Copyrights, by regulation,
can require or permit the deposit of identifying
material instead of copies, or the deposit of
phonorecords rather than notated copies.
The Register may also allow the deposit of
one copy rather than two and provide for a
single registration for a group of related
works. [Section 408]
The copyright owner of a musical composition
has the exclusive right to make or license
the first recording of the work.
Once phonorecords have been distributed to
the public in the U.S. under the authority
of the copyright owner, the work becomes
subject to the compulsory license.
The compulsory license is available only
if the user's primary purpose is to
distribute the phonorecords to the
public for home use.
Act of
1909
Compulsory licensee must send to the
copyright owner, by registered mail,
a notice of his intention to use the
music; a copy of that notice must be
sent to the Copyright Office for
recordation.
Once a copyright owner records or
licenses his work for recording, he must
file notice of use (Form U) with the
Copyright Ofice. Courts have held that
the copyright owner cannot collect royalties
for any infringing records made before he
files this notice
[Sections 1(e), 101(e)]
COMPULSORY LIC-
ENSE TO USE
COPYRIGHTED
MUSICAL COMP-
OSITIONS ON
PHONORECORDS
A2:10
Act of
1976
The compulsory license includes the privilege
of making a musical arrangement of the work to
the extent necessary to conform it to the style
or manner of interpretation of the performance
involved; the new arrangement cannot change the
basic melody or fundamental character of the
work. The arrangement is not subject to pro-
tection as a derivative work unless the copy-
right owner expressly gives his consent.
To obtain a compulsory license, the user must
send a notice of his intent to the copyright
owner. It must be served before or within
30 days after making and before distributing
any phonorecords. This notice must comply in
form, content and manner of service with
regulations prescribed by the Register of Copy-
rights. A copy of this notice need not be sent
to the Copyright Office.
To be entitled to royalties the copyright owner
must be identified in the registration or other
public records of the Copyright Office.
If the registration or other public records of
the Copyright Office do not identify the copy-
right owner and his address, the notice should
be filed with the Copyright Office.
COMPULSORY LIC-
ENSE TO USE
COPYRIGHTED
MUSICAL COMP-
OSITIONS ON
PHONORECORDS
Act of
1909
On the 20th of each month, the compulsory
licensee must account to the copyright owner
of the music. He must send the required
royalty of 2 cents for each "part"
manufactured.
A2:11
Act of 1976
Failure to file a notice of intent
forecloses the possibility of a
compulsory license.
Compulsory licensee must pay 2 3/4 cents
or 1/2 cent per minute of playing time
or fraction thereof, whicher is larger,
for records that are made and distributed.
Royalty payments are to be made on
or before the 20th day of each month.
Each payment must be under oath and must
comply with the requirements of the
Copyright Office regulations.
The Register of Copyrights, by
regulation, is to establish criteria
for the detailed annual statements of
account which must be certified by an
independent Certified Public Accountant.
The notice of use (Form U) is no longer
required.
[Section 115]
- A3:1 -
APPENDIX THREE
EDUCATIONAL AND CONTU GUIDELINES
AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NO-FOR-PROFIT
EDUCATIONAL INSTITUTION
WITH RESPECT TO BOOKS AND PERIODICALS
The purpose of the following guidelines is to state
the minimum, and not the maximum standards of educational fair
use under section 107 of H.R. 2223. The parties agree that
the conditions determining the extent of permissible copying
for educational purposes may change in the future; that certain
types of copying permitted under these guidelines may not be
permissible in the future; and conversely that in the future
other types of copying not permitted under these guidelines
may be permissible under revised guidelines.
Moreover, the following statement of guidelines
is not intended to limit the types of copying permitted under
the standards of fair use under judicial decision and which
are stated in section 107 of the Copyright Revision Bill.
There may be instances in which copying which does not fall
within the guidelines stated below may nonetheless be per-
mitted under the criteria of fair use.
GUIDELINES
I. SINGLE COPYING FOR TEACHERS:
A single copy may be made of any of the following
by or for a teacher at his or her individual request for his
or her scholarly research or use in teaching or preparation
to teach a class:
A.
A chapter from a book;
B.
An article from a periodical or newspaper;
C.
A short story, short essay or short poem
whether or not from a collective work;
D.
A chart, graph, diagram, drawing, cartoon
or picture from a book, periodical, or newspaper.
- A3:2 -
II.
MULTIPLE COPIES FOR CLASSROOM USE:
Multiple copies (not to exceed in any event more
than one copy per pupil in a course) may be made by or for
the teacher giving the course for classroom use or discussion;
provided that:
A.
The copying meets the tests of brevity and
spontaneity as defined below;
and,
B.
Meets the cumulative effect test as defined
below;
and
C. Each copy includes a notice of copyright.
DEFINITIONS:
Brevity:
i.
Poetry: (a) A complete poem if less than 250
words and if printed on not more than two pages or, (b) from
a longer poem, an excerpt of not more than 250 words.
ii.
Prose; (a) Either a complete article, story
or essay of less than 2,500 words, or (b) An excerpt from any
prose work of not more than 1,000 words or 10% of the work,
whichever is less, but in any event a minimum of 500 words.
[Each of the numerical limits stated in "i" and "ii"
above may be expanded to permit the completion of an
unfinished line of a poem or of an unfinished prose
paragraph.]
iii.
Illustration: One chart, graph, diagram,
drawing, cartoon or picture per book or per periodical issue.
- A3:3 -
iv. "Special" works: Certain works in poetry,
prose or in "poetic prose" which often combine language with
illustrations and which are intended sometimes for children
and at other times for a more general audience fall short
of 2,500 words in their entirety. Paragraph "ii" above not-
withstanding such "special works" may not be reproduced in
their entirety; however, an excerpt comprising not more than
two of the published pages of such special work and contain-
ing not more than 10% of the words found in the text thereof,
may be reproduced.
Spontaneity:
i.
The copying is at the instance and inspiration
of the individual teacher, and
ii.
The inspiration and decision to use the work and the
moment of its use for maximum teaching effectiveness
are so close in time that it would be unreasonable to
expect a timely reply to a request for permission.
Cumulative Effect:
i.
The copying of the material is for only one course in
the school in which the copies are made.
ii.
Not more than one short poem, article, story, essay or
two excerpts may be copied from the same author, nor
more than three from the same collective work or periodical
volume during one class term.
- A3:4 -
iii. There shall not be more than nine instances
of such multiple copying for one course during one class
term.
[The limitations stated in "ii" and "iii" above shall
not apply to current news periodicals and newspapers
and current news sections of other periodicals.]
III. PROHIBITIONS AS TO I AND II ABOVE:
Notwithstanding any of the above, the following
shall be prohibited:
A.
Copying shall not be used to create or to replace
or substitute for anthologies, compilations or collective
works. Such replacement or substitution may occur
whether copies of various works or excerpts therefrom
are accumulated or are reproduced and used separately.
B.
There shall be no copying of or from works intended to
be "consumable" in the course of study or of teaching.
These include workbooks, exercises, standardized tests
and test booklets and answer sheets and like consumable
material.
C. Copying shall not:
a.
substitute for the purchase of books,
publisher's reprints or periodicals;
b.
be directed by higher authority;
c. be repeated with respect to the same
item by the same teacher from term to term.
D. No charge shall be made to the student beyond
the actual cost of the photocopying.
- A3:5 -
In addition, representatives of the Music Publishers'
Association of the United States, Inc., the National Music Publishers'
Association, Inc., the Music Teachers National Association, the
Music Educators National Conference, the National Association of
Schools of Music and the Ad Hoc Committee on Copyright Revision
developed the following guidelines:
GUIDELINES UNDER FAIR USE FOR MUSIC
The purpose of the following guidelines is to state the
minimum and not the maximum standards of educational fair use
under section 107 of H.R. 2223. The parties agree that the
conditions determining the extent of permissible copying for
educational purposes may change in the future; that certain
types of copying permitted under these guidelines may not
be permissible in the future; and conversely that in the
future other types of copying not permitted under these guide-
lines may be permissible under revised guidelines.
Moreover, the following statement of guidelines is
not intended to limit the types of copying permitted under
the standards of fair use under judicial decision and which
are stated in section 107 of the Copyright Revision Bill.
There may be instances in which copying which does not fall
within the guidelines stated below may nonetheless be permitted
under the criteria of fair use.
A.
PERMISSIBLE USES
1.
Emergency copying to replace purchased copies which
for any reason are not available for an imminent perform-
ance provided purchased replacement copies shall be sub-
stituted in due course.
2.
For academic purposes other than performance, single
or multiple copies of excerpts of works may be made, pro-
vided that the excerpts do not comprise a part of the
whole which would constitute a performable unit such as
a section, movement or aria, but in no case more than
(10%) of the whole work. The number of copies shall not
exceed one copy per pupil.
- A3:6 -
3.
Printed copies which have been purchased may be edited
or simplified provided that the fundamental character of
the work is not distorted or the lyrics, if any, altered
or lyrics added if non exist.
4.
A single copy of recordings of performance by students
may be made for evaluation or rehearsal purposes and
may be retained by the educational institution or
individual teacher.
5. A single copy of a sound recording (such as a tape,
disc or cassette) of copyrighted music may be made from
sound recordings owned by an educational institution or
an individual teacher for the purpose of constructing
aural exercises or examinations and may be retained by
the educational institution or individual teacher. (This
pertains only to the copyright of the music itself and
not to any copyright which may exist in the sound record-
ing.)
B.
PROHIBITIONS
1.
Copying to create or replace or substitute for antho-
logies, compilations or collective works.
2.
Copying of or from works intended to be "consumable"
in the course of study or of teaching such as workbooks,
exercises, standardized tests and answer sheets and like
material.
3.
Copying for the purpose of performance, except as in
A(1) above.
4.
Copying for the purpose of substituting for type pur-
chase of music, excepts as in A(1) and A(2) above.
5. Copying without inclusion of the copyright notice
which appears on the printed copy.
- A3:7 -
CONTU Guidelines for interlibrary loans
PHOTOCOPYING--INTERLIBRARY ARRANCEnENTS
Introduction
Subsection 108(g)(2) of the bill deals, among other
things, with limits on interlibrary arrangements for photocopying.
It prohibits systematic photocopying of copyrighted materials but
permits interlibrary arrangements "that do not have as their purpose
or effect, that the library or archives receiving such copies or
phonorecords for distribution does so in such aggregate quantities
as to substitute for a subscription to or purchase of such work."
The National Commission on New Technological Uses of Copy-
righted Works offered its good offices to the House and Senate sub-
committees in bringing the interested parties together to see if
agreement could be reached on what a realistic definition would be
of "such agregate quantities." The Commission consulted with the
parties and suggested the interpretation which follows, on which
there has been substantial agreement by the principal library,
publisher, and author organizations. The Commission considers the
guidelines which follow to be a workable and fair interpretation
of the intent of the proviso portion of subsection 108(g)(2).
These guidelines are intended to provide guidance in the
application of section 108 to the most frequently encountered
interlibrary case: a library's obtaining from another library,
in lieu of interlibrary loan, copies of articles from relatively
recent issues of periodicals--those published within five years prior
to the date
of
the request. The guidelines do not specify what
aggregate quantity of copies of an article or articles published
in a periodical, the issue date of which is more than five years
prior to the date when the request for the copy thereof is made,
constitutes a substitute for a subscription to such periodical.
The meaning of the proviso to subsection 108(g)(2) in such case is
left to
future
interpretation.
The point has been made that the present practice on
interlibrary loans and use of photocopies in lieu of loans may
be supplemented or even largely replaced by a system in which one
or more agencies or institutions, public or private, exist for
the
specific purpose of providing a central source for photocopies.
Of course, these guidelines would not apply to such a situation.
- A3:8 -
GUIDELINES FOR THE PROVISO OF SUBSECTION 108(G)(2)
1. As used in the proviso of subsection 108(g)(2), the
words "...such aggregate quantities as to substitute for
a subscription to or purchase of such work" shall
mean:
(a)
with respect to any given periodical (as opposed
to any given issue of a periodical), filled requests
of a library or archives (a "requesting entity")
within any calendar year for a total of six or more
copies of an article or articles published in such
periodical within five years prior to the date of
the request. These guidelines specifically shall
not apply, directly or indirectly, to any request
of a requesting entity for a copy or copies of an
article or articles published in any issue of a
periodical, the publication date of which is more
than five years prior to the date when the request
is made. These guidelines do not define the
meaning, with respect to such a request, of "...such
aggregate quantities as to substitute for a subscription
to [such periodicall".
(b)
with respect to any other material described
in subsection 108(d), (including fiction and
poetry), filled requests of a requesting entity
within any calendar year for a total of six or more
copies or phonorecords of or from any given work
(including a collective work) during the entire
period when such material shall be protected by
copyright.
2. In the event that a requesting entity--
(a)
shall have in force or shall have entered an
order for a subscription to a periodical, or
(b)
has within its collection, or shall have entered
an order for, a copy or phonorecord of any other
copyrighted work, material from either category
of
which it desires to obtain by copy from another
library or archives (the "supplying entity"),
because the material to be copied is not reasonably
available for use by the requesting entity itself,
then the fulfillment of such request shall be
treated as though the requesting entity made such
copy from its own collection. A library or archives
may request a copy or phonorecord from a supplying
entity only under those circumstances where the
requesting entity would have been able, under the
other provisions of section 108, to supply such
copy from materials in its own collection.
3. No request for a copy or phonorecord of any material
to which these guidelines apply may be fulfilled by the supplying
entity unless such request is accompanied by a representation
by the requesting entity that the request was made in conformity
with these guidelines.
- A3:9 -
4.
The requesting entity shall maintain records of all
requests made by it for copies or phonorecords of any materials
to which these guidelines apply and shall maintain records of the
fullfillment of such requests, which records shall be retained
until the end of the third complete calendar year after the
end of the calendar year in which the respective request shall
have been made.
5.
As part of the review provided for in subsection 108(i),
these guidelines shall be reviewed not later than five years
from the effective date of this bill.
The conference committee is aware that an issue has arisen
as to the meaning of the phrase "audiovisual news program" in section
108(f)(3). The conferees believe that, under the provision as
adopted in the conference substitute, a library or archives qualifying
under section 108(a) would be free, without regard to the archival
activities of the Library of Congress or any other organization, to
reproduce, on videotape or any other medium of fixation or reproduction,
local, regional, or network newscasts, interviews concerning current
news events, and on-the-spot coverage of news events, and to distribute
a limited number of reproductions of such a program on a loan basis.
Another point of interpretation involves the meaning of
"indirect commercial advantage," as used in section 108(a)(1),
in the case of libraries or archival collections within industrial,
profit-making, or proprietary institutions. As long as the library
or archives meets the criteria in section 108(a) and the other
requirements of the section, including the prohibitions against
multiple and systematic copying in subsection (g), the conferees
consider that the isolated, spontaneous making of single photocopies by
a library or archives in a for-profit organization without any
commercial motivation, or participation by such a library or archives
in interlibrary arrangements, would come within the scope of section
108.
- A4:1 -
OFFICIAL SOURCE MATERIALS
ON COPYRIGRT REVISION
I.
Copyright Revision Studies, Nos. 1-35
Studies prepared for the Subcommittee on Patents, Trademarks,
and Copyrights of the Committee on the Judiciary, U.S. Senate.
STUDIES 1-4. 142 pages. 1960.
1.
The History of U.S.A. Copyright Law Revision
from 1901 to 1954
2.
Size of the Copyright Industries
3.
The Meaning of "Writings" in the Copyright
Clause of the Constitution
4.
The Moral Right of the Author
STUDIES 5-6. 125 pages. 1960.
5.
The Compulsory License Provision of the U.S.
Copyright Law
6.
The Economic Aspects of the Compulsory
License
STUDIES 7-10. 125 pages. 1960.
7.
Notice of Copyright
8.
Commercial Use of the Copyright Notice
9.
Use of the Copyright Notice by Libraries
10.
False Use of the Copyright Notice
STUDIES 11-13. 155 pages. 1960.
11.
Divisibility of Copyrights
12.
Joint Ownership of Copyrights
13.
Works Made for Hire and on Commission
STUDIES 14-16. 135 pages. 1960.
14.
Fair Use of Copyrighted Works
15.
Photoduplication of Copyrighted Materials
by Libraries
16.
Limitations on Performing Rights
STUDIES 17-19. 135 pages. 1960.
17.
The Registration of Copyright
18.
Authority
of
the Register of Copyrights to
Reject Applications for Registration
19.
The Recordation of Copyright Assignments
and Licenses
STUDIES 20-21. 81 pages. 1960.
20.
Deposit of Copyrighted Works
21. The Catalog of Copyright Entries
A4:2
STUDIES 22-25. 169 pages. 1960.
22.
The Damage Provisions of the Copyright Law
23.
The Operation of the Damage Provisions of the
Copyright Law: An Exploratory Study
24.
Remedies Other Than Damages for Copyright
Infringement
25.
Liability of Innocent Infringers of Copyright
STUDIES 26-28. 116 pages. 1961.
26.
The Unauthorized Duplication of Sound Recordings
27.
Copyright in Architectural Works
28.
Copyright in Choreographic Works
STUDIES 29-31. 237 pages. 1961.
29.
Protection of Unpublished Works
30.
Duration of Copyright
31.
Renewal of Copyright
STUDIES 32-34. 57 pages. 1961.
32.
Protection of Works of Foreign Origin
33.
Copyright in Government Publications
34.
Copyright in Territories and Possessions of
the United States
STUDY 35. 73 pages. 1963.
35.
The Manufacturing Clause of the U.S. Copyright
Law
II.
Copyright Office Reports and Panel Discussions
Part 1. Register's Report, 1961
Part 2. Register's Report - Discussion and
Comments, 1963
Part 3. Preliminary Draft for Revised Copyright
Law with Discussion and Comments, 1964
Part 4. Preliminary Draft - Further Discussions
and Comments, 1964
Part 5. 1964 Revision Bill with Discussions and
Comments, 1965
Part 6. Supplemental Report of the Register, 1965
Draft Second Supplemental Report of the
Register, 1975
III.
Legislative Hearings
1.
1965 Hearings before Subcommittee No. 3 of the
House Judiciary Committee. Serial No. 8, Pts.
1-3 (3 Volumes, with index)
2.
1965-1967 Hearings before the Subcommittee on
Patents, Trademarks & Copyrights of the Senate
Committee on the Judiciary - specifically, the
following seven volumes:
A4:3
(i)
August 18-20, 1965 on S. 1006
(ii)
August 2-4 & 25, 1966 on S. 1006
(CATV)
(iii)
March 15-17, 1967 on S. 597 ("Part 1")
(iv)
March 20-21 & April 4, 1967 on S. 597
("Part 2")
(v)
April 6, 11-12, 1967 on S. 597 ("Part 3")
(vi)
April 28, 1967 on S. 597 ("Appendix")
(vii) [Combined] index of Hearings
3.
July 31 and August 1, 1973 Hearings before the
Subcommittee on Patents, Trademarks & Copyrights
of the Senate Committee on the Judiciary
4.
1975 Hearings before the Subcommittee on Courts,
Civil Liberties & Administration of Justice of the
House Committee on the Judiciary (Serial No. 36)
(3 Volumes)
5. July 24, 1975 Hearings before the Subcommittee on
Patents, Trademarks & Copyrights of the Senate
Committee on the Judiciary (Primarily Performance
Royalty)
IV. Legislative Reports
Conference Report. 94th Cong., 2d Sess., House
Report 94-1733. 1976
Report of the House Committee on the Judiciary.
94th Cong., 2d Sess., House Report 94-1476.
1976. Report together with Additional Views.
[NOTE: In connection with this report reference
must be made to both (a) the "corrections" printed
in the Congressional Record of September 21, 1976,
at pp. 10727-28. (Reprinted in Copyright Office
Announcement ML-130) and (b) additional corrections,
amplifications and modifications announced during
the House Floor Debate printed in the Congressional
Record of September 22, 1976. (Reprinted in Copy-
right Office announcement ML-132).
Report of the Senate Committee on the Judiciary.
94th Cong., 1st Sess., Calendar No. 460, Senate
Rept. 94-473. 1975. Report together with Addi-
tional Views.
A4:4
Report of the Senate Committee on Commerce. 93d
Cong., 2d Sess., Calendar No. 995, Senate Rept.
93-1035. 1974. Minority and Additional Views.
Report of the Senate Committee on the Judiciary.
93d Cong., 2d Sess., Calendar No 9A6, Senate
Rept. 93-933. 1974. Additional and Minority
Views. (Star Print).
Report of the House Committee on the Judiciary.
90th Cong., 1st Sess. House Report 83, 1967.
Report of the House Committee on the Judiciary,
89th Cong., 2nd Sess., House Rept. 2237. 1966.
V.
Floor Debates
Relevant proceedings are reported in the Congressional
Record for:
September 22, 1976 (House) [Reprinted Copyright Office
Announcement ML-132].
September 30, 1976 (House & Senate) [Reprinted in
Copyright Office Announcement ML-133]
February 16-19, 1976 (Senate)
September 5, 6, and 9, 1974 (Senate)
April 6 and 11, 1967 (House)
*U.S. GOVERNMENT PRINTING OFFICE: 1979 0-281-C93/2815