Advantages of a single Federal system

Essentially, four significant arguments have been advanced in favor of the single Federal system. These arguments can be summarized as follows:

(1) Promote national uniformity.—One of the fundamental purposes behind the copyright clause of the Constitution was to promote national uniformity and to avoid the practical difficulties of determining and enforcing an author's rights under the differing laws and in the separate courts of the various States. Today, when the methods for dissemination of an author's work are incomparably broader and faster than they were in 1789, national uniformity in copyright protection is even more essential than it was then to carry out the constitutional intent.

(2) Reduce Legal Significance of "Publication."-Perhaps the most serious defect in the present law is its undue reliance on the outdated concept of “publication." Although at one time, when works were disseminated almost exclusively through printed copies, "publication" could serve as a practical dividing line between common law and statutory protection, this is no longer true. With the development of the 20th-century communications revolution, the concept of publication has become increasingly artificial and obscure. To cope with the legal consequences of an established concept that has lost much of its meaning and justification, the courts have given "publication" a number of diverse interpretations, some of which are radically different. Not unexpectedly, the results in individual cases have become unpredictable and often unfair. A single Federal system would clear up this chaotic situation.

(3) Advance "Limited Times" Provision of Constitution.-Enactment of section 301 would implement the "limited times" provision of the Constitution, which has become distorted under the traditional concept of "publication." Common law protection in "unpublished" works is now perpetual, no matter how widely they may be disseminated by means other than "publication." The revision bill would place a time limit on the duration of exclusive rights which could be asserted on such works. The provision would also aid scholarship by making unpublished manuscripts available for publication after a reasonable period.

(4) Promote International Exchange of Intellectual Property.-Adoption of a uniform national copyright system would greatly improve international dealings in copyrighted material. No other country has anything like our present dual system. In an era when copyrighted works can be disseminated instanteously to every country on the globe, the need for effective international copyright relations, and the concomitant need for national uniformity, assume ever greater importance.

Recent developments concerning the dual system of copyright

Section 301 has been one of the bedrock provisions of the current program for general revision of the copyright law since the introduction of the first revision bill in 1964. General support for a single Federal system of copyright has been widespread and, until recently, the wording as well as the underlying intent behind section 301 appeared to be consistent with the judicial trend of limiting the rights of States to enforce rights similar to patent and copyright protection. Recently, there have been some new developments concerning the judicial stance on the dual copyright system, and Congress may be asked to consider changing some of the wording in section 301. These developments were the immediate result of the phenomenon of tape piracy, the lack of Federal protection for sound recordings fixed before February 15, 1972, and the activities of many of the States aimed at deterring tape piracy within their jurisdictions. The problem of tape piracy was not addressed at the Federal level until 1971, when Congress enacted P.L. 92-140 providing both civil and criminal remedies against piracy of published sound recordings fixed after February 15, 1972. In the meantime, many States had enacted statutes of their own against the practice, and the constitutionality of a California criminal law on the subject was raised in Goldstein v. California 412 U.S. 546 (1973). In a 5-4 decision, the Supreme Court uphe'd the constitutionality of the statute as it related to sound recordings fixed and first published before February 15, 1972, on the ground that Congressional inaction concerning pre-1972 sound recordings did not preclude State action.

In reaching this decision, the Court did not specifically modify its earlier ruling in Sears v. Stiffel Co. 376 U.S. 225 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964) holding that the States could not protect patentable subject matter against copying because of the conflict with the objectives of the patent (and inferentially the copyright) system. The Sears/Compco

decisions did not, however, deal with copyright specifically, and this enabled the Court to reach a decision sustaining State law in the Goldstein case without touching on them. The rationale of Goldstein was applied in a recent case involving trade secrets, Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974). Again, the Court did not overrule Sears/Compco, although there appear to be different views of the Federal system underlying these decisions.

Subsection (a)

ANALYSIS OF SECTION 301

Pre-emption of State common law or statutory copyright.-It is the intention of section 301 to pre-empt and abolish any right 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. In order to carry out this purpose an effort was made to draft section 301 in the clearest and most unequivocal language possible, so as to foreclose any possible misinterpretation of its unqualified intention that Congress shall act pre-emptively, and foreclose the development of vague borderline areas between State and Federal protection. Exclusive Federal jurisdiction.-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. All corresponding State laws, whether common law or statutory, are pre-empted and abrogated. Regardless of when the work was created and whether it is published or unpublished, disseminated or undisseminated, in the public domain or copyrighted under the Federal statute, the States cannot offer it protection equivalent to copyright. 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.

Subsection (b): Rights not equivalent to Copyright Preserved.-Although States would be prevented from protecting works coming within the general subject matter categories of sections 102 and 103 against activities within the general area protected by copyright law, protection under State law continues in several important respects. Subsection (b) of section 301 explicitly lists three general areas left unaffected by the pre-emption: (1) unpublished material outside the subject of copyright; (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. Examples of the latter rights are actions for breach of contract, breach of trust, defamation, and deceptive trade practices.

In view of the recent Supreme Court decisions in the Goldstein and Kewanee cases, referred to above, Congress should reconsider the wording of section 301, and subsection (b) in particular. The word "unpublished" in clause (1) of subsection (b) is probably inconsistent with the Goldstein decision, and additions to the specific references in clause (3) appear justified by this judicial trend.

Summary

DURATION OF COPYRIGHT

SECTIONS 302-305-DURATION

The present U.S. law with respect to the duration of copyright was enacted in 1909, but is based directly on a system dating back to the first copyright statute in history, the Statute of Anne adopted by the English Parliament in 1710. It has been retained as a relic of the past in this country long after it was abandoned in England, and long after England and almost every other country in the world has adopted a copyright term based on the life of the author.

U.S. copyright now endures for 28 years from the exact date of first publication, or, in the case of works registered in unpublished form, the date of registration. It can be renewed for a second period of 28 years. In one of the most fundamental changes in the revision bill, copyright protection would be based on the life of the author plus 50 years after the author's death, with exceptions for joint works, works of unknown authorship, and works made for hire.

Advantage of “Life-plus-fifty” system

Present term too short.-With the significant increase in life expectancy since 1909, the longer term would ensure the opportunity for authors and their dependents to share equitably in the economic benefits from their creative works. This

is especially important in view of new communications technology which has substantially lengthened the commercial life of a great many works. Often works of music, literature and art are not recognized for their true worth for decades; under the present system an author may well outlive his copyright and see his work fall into the public domain shortly after it becomes recognized and profitable for others.

International standards.-Nearly all countries in the world have copyright laws, and virtually all of them except the United States base their copyright term in the life of the author. A duration of the life of the author and fifty years after his death (sometimes referred to as "fifty years post mortem auctoris" or "50 years p.m.a.") became the governing international copyright term in 1928, and the 1948 Brussels revision of the International (Berne) Convention for the Protection of Literary and Artistic Works made this term a mandatory minimum for all member countries. A large majority of the world's industrialized countries have accepted or augmented this international standard.

As a practical matter it is to the advantage of American authors for the United States to adopt the same system. Copyrighted material moves across national borders more quickly and easily than any other economic commodity. The present and potential uses of new communications technology, including satellites, underscore the need for uniformity, thereby facilitating international dealings in copyrighted materials.

Simplicity.-Duration of copyright is far simpler and easier to administer on the "life plus fifty" basis than on the present basis where the public must determine a multitude of publication dates and distinguish "old" from "new" material in later editions in order to use the work. With technological changes in the means of dissemination, the concept of “publication" has become vague and often meaningless. Under the revision bill, all the works of an author would fall into the public domain at the same time, and the Copyright Office would maintain a registry of the dates when authors died.

Elimination of renewal requirement.—Another important, related feature of the revision bill is the elimination of the renewal system. The renewal provision of the current law is a highly technical and rigid formality, and it often results in the unfair and unintended loss of copyright protection.

Section 302: Duration of works created after effective date of new law

Basic term.-Section 302 establishes the basic "life-plus-fifty" term for works created after the revision bill comes into effect, and provides special terms to cover cases where it is impossible or impracticable to base the term on a single individual's life.

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 an anonymous or pseudonymous work, the term endures for seventy-five years from the year of its first publication or one hundred 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 a registration, the term would be based on the life of the identified author plus fifty years. In addition, any interested person may record a statement of death of an author of a copyrighted work, or statement that the author is still living on a particular date.

Works made for hire.-A "work made for hire," which is defined in considerable detail in section 101, is also subject to a term of seventy-five years from first publication or one hundred years from creation, whichever is shorter. Since under section 201(b), the employer is considered the "author" of a "work made for hire," it would be inappropriate to base the term on the author's life in such

cases.

Presumption of author's death.-The bill also specifies that, after a period of seventy-five years after first publication or one hundred 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, 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.

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

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

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

Section 304: Duration: subsisting copyrights

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

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

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

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

Section 305: Terminal date

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

CHAPTER 4

COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

General considerations

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

Summary of key provisions

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

Policy considerations

SECTIONS 401-406-COPYRIGHT NOTICE

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

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

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

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

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

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

Section 402: Notice on phonorecords of sound recordings

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