Re: Wrong year in notice

From: Bruce Hayden <bhayden[_at_]copatlaw.com>
Date: Sat, 21 Oct 1995 08:39:28 -0600

> For copies distributed pre-Berne, if the date is erroneous and earlier
> than the correct date, then the term of copyright will be calculated as
> if the early date was the date of first publication.

My impression though is that the notice date is later than the correct date. See below.

> If the "error" is actually an intentional deception, then we're looking
> at a fraudulent notice, which is covered by 17 U.S.C. 506(c). That
> carries a fine of up to $2,500.
>
>> The specifics: some companies publish musical settings to liturgical
>> texts on a three-year cycle. I recently noticed in one book that the
>> copyright notice on each week's setting listed the current year,
>> despite the fact that the music (both melody and arrangment) is
>> identical to the music from three (and six) years ago (or only
>> marginally modified). I don't have the books from nine years ago --
>> that's before I became involved in our choir.
>>
>> So, my question is, is this publisher causing itself trouble, or
>> merely being unethical?

I agree that the sloppy is probably accurate. I don't really believe that there is any really deceptive intent in most of these cases. BUT the six (maybe) and the nine years ago would put them pre-Berne.

What is scary is that section 406(b) seems rather draconian in this respect:

           (b) Error in Date. - When the year date in the notice on copies 
         or phonorecords distributed before the effective date of the Berne 
         Convention Implementation Act of 1988 by authority of the copyright 
         owner is earlier than the year in which publication first occurred, 
         any period computed from 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 occurred, the work is considered to have been 
         published without any notice and is governed by the provisions of 
         section 405.

The first part of this paragraph is as you stated above. The latter part though appears more relevant - what happens when the notice date is after the actual date.

I read this in combination with section 405 possibly ejecting the works into the public domain. I say possibly because more facts are required. For example, if the notice is required by contract with the copyright owner, but the wrong one is placed on the work by the publisher (and they are different persons) the copyright may be saved by 405(a)(3).

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The preceding was not a legal opinion, and may not be my employers'. Orignal portions Copyright 1995 Bruce E. Hayden,All Rights Reserved. My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain.

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Bruce E. Hayden                                bhayden[_at_]acm.org               
Austin, Texas                                  bhayden[_at_]copatlaw.com

Received on Sat Oct 21 1995 - 13:41:01 GMT