Re: Wrong year in notice

From: Bruce Hayden <bhayden[_at_]copatlaw.com>
Date: Tue, 24 Oct 1995 08:16:24 -0600

> Section 405 only injects works into the public domain for lack of notice
> if the copies in question were publicly distributed prior to the BCIA date
> of March 1989. If the noticeless copies that the original questioner is
> asking about were distributed prior to March 1989, then, as you point out,
> there is a potential for a copyright forfeiture based upon a publication
> without notice. But I gathered that the copies in question were being
> distributed now, after the BCIA has gone into effect. In that case, the
> forfeiture provisions of 405(a) don't apply, and the only consequence is
> the 405(b) provision regarding the innocent infringement defense.
>
> In other forums, I've seen some confusion about the application of 405(a).
> It's been misread as applying to any work published prior to U.S. entry
> into Berne. In fact, though, the text of the statute is clear that it
> applies only to the particular copies that were distributed pre-Berne.
> 405(a) doesn't apply to copies that are distributed post-Berne, even if
> the works themselves are pre-Berne.

You are correct that there is confusion. A couple of years ago I spent some time on a case where just this was at issue - a pre-Berne work with post-Berne publication w/o notice. Both sides were reading the law the other way.

I will accept Terry's assurances that the law has settled down the other way. He's not as well accepeted as Nimmer, but getting there quickly.

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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 Tue Oct 24 1995 - 13:18:07 GMT