Re: Copyright Date

     The version of section 406 of the copyright act posted last week by Bruce Hayden does not agree with the version that I have. Section 406(b) states:

     When the year date in the notice on copies or phonorecords distributed before [March 1, 1989] by authority of the copyright owner is EARLIER than the year in which publication first ocurred, any period computed ferom the year of first publication under section 302 is to be computed from the year in the notice. Where the year date is MORE THAN ONE YEAR LATER than the year in which publication first occcured, the work is considered to have been published without any notice and is govened by the provisions of section 405.

     In other words, under this scheme, if a work published in 1988 listed a 1986 copyright notice date, all relevant time measurements would be counted from 1986. If it listed a 1990 date, the copyright would be in jeopardy. If it listed a 1989 date, there would be no problem.

    The one year grace period afforded by this statutory language often lead publishers to post-date notice by one year, particularly with academic texts, to make them seem more "up-to-date". Thus a law book published in 1986 would often deliberately bear and 1987 notice date for marketing, as opposed to copyright, reasons. If the publisher guess wrong about when the book would hit the shelves and expected a January 1986 release, but the book was shipped in December 1985, that could lead to a date being two years off, but as noted from the statute, that would have be legally risky pre-Berne.

     I agree entirely with the notion that none of this matters post-1989, since notice is now effectively optional.

     My other point, though, is that much of this ceased to matter in 1978 when the current Copyright law took effect. Under the prior statute, copyright endured for a set period -- 28 years -- from date of publication (with possibility of renewal). Thus a clear indication of publiction date was crucial to calculating copyright term. Under the current law, copyright endures for the life of the author plus 50 years in many cases. That means that the date of publication is of little importance. Indeed, an interesting consequence of this system is that all works published by the same author will enter the public domain at the exact same time regardless of the fact that some may have been published 30 years before others.

     Of course, the duration of copyright in works-for-hire is still measured from publication date, so publication date retains considerable importance, but the significance is much reduced from what it was prior to 1978.

     Hope some of this is helpful, or at least interesting.      

                           PROF. ROGER E. SCHECHTER
                         George Washington University
                             Voice: 202-994-3702
                              Fax: 202-994-9446
                   Internet:  rschechter[_at_]main.nlc.gwu.edu


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