Re: Copyright Infringement Happening at Conference Group - Help!

On Fri, 17 Jul 1998, Bill Scanlon <wscanlon[_at_]execpc.com> wrote:
>
> Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > On Thu, 16 Jul 1998, Bill Scanlon <wscanlon[_at_]execpc.com> wrote:
> > >
> > > Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
> > > >
> > > > The most [important] thing to remember is the date March 1, 1989.
> > > > Before that date, anyone in the U.S. has to put a copyright notice on
> > > > a fixed work in order to secure copyright in the work. After that
> > > > date, no one is required to do that. The copyright exists from the
> > > > moment a person puts his expression in a fixed material...
> > >
> > > The date is January 1, 1978 - not March 1, 1989.
> > >
> > > After January 1, 1978, copyright notice on a work when it is first
> > > published in the United States under authority of the copyright owner
> > > is not required to secure copyright in the work.
> >
> > No, Joseph had it pretty much right (although the notice is applicable
> > only to published works, not unpublished works). Copyright notice was
> > still required on published copies and phonorecords even after the
> > Copyright Act of 1976 (Pub. L. 104-553) became effective, although it
> > was much more lenient and allowed for the copyright owner to cure the
> > omission. The requirement was in sections 401 and 402; the cure
> > provision is still in section 405.
> >
> > Effective March 1, 1989, the Berne Convention Implementation Act (Pub. L.
> > 100-568) amended sections 401 and 402 to make the notice optional, rather
> > than required, on published copies and phonorecords.

I hate to leave so much quoted material untrimmed, but I think it's worthwhile in this case as a point of clarity.

> No, Joseph did not "have it pretty much right." Joseph indicated that
> until March 1, 1989 a work needed a copyright notice or there would be
> no US copyright. That is not correct.

As I wrote, it is not correct as to unpublished works. However, as to published works, it's quite correct. As I noted, copyright was forfeited, subject to the cure provisions I cited, if the published copies did not include a copyright notice. This requirement was in sections 401 and 402, and made optional by the 1989 BCIA, effective 3/1/1989.

> The important date is January 1, 1978 - since that date the existence
> of US copyright in a work has not required publication with notice.

The original sections 401-402 as of 1/1/1978 did require notice on published copies of the work.   

> Yes, it is a true that notice requirements were further liberalized
> as of March 1, 1989.

The notice requirements were removed, not liberalized, as of March 1, 1989.

I'm also having trouble with one of your points here: if there was no notice requirement as of 1978, what do you mean when you say that the notice requirement (which you believe did not exist) was liberalized 12 years later in 1989?

> Section 405(a) of the present Act, which has been substantively
> unchanged since January 1, 1978 except that it now applies only to
> "copies and phonorecords publicly distributed by authority of the
> copyright owner before [March 1, 1989]" provides three methods of
> curing the absence of notice, to the extent such notice was
> required from January 1, 1978 to February 28, 1989:
>
> [The absence of notice] does not invalidate the copyright
> in a work if -
> (1) the notice has been omitted from no more than a
> relatively small number of copies or phonorecords
> distributed to the public; or
> (2) registration for the work has been made before or
> is made within five years after the publication without
> notice, and a reasonable effort is made to add notice
> to all copies or phonorecords that are distributed to
> the public in the United States after the omission has
> been discovered; or
> (3) the notice has been omitted in violation of an
> express requirement in writing that, as a condition of
> the copyright owner's authorization of the public
> distribution of copies or phonorecords, they bear the
> prescribed notice.

Right. This is the cure provision I referred to. The cure provision is limited to copies distributed prior to 3/1/1989 precisely because the notice requirement applied prior to 3/1/1989. There's no need to cure a lack of notice on copies distributed after 3/1/1989, because after 3/1/1989, copyright notice was no longer a requirement: with respect to copies distributed after that date, there was nothing to cure.

> Plainly, then, since January 1, 1978, copyright notice on publicly
> distributed copies or phonorecords of a work was not required for an
> US copyright in the work to come into existence.

Not to come into existence, no; but in the period 1/1/1978 to 3/1/1989, notice on published copies was required to maintain existence of the copyright. As of 1/1/1978, copyright was secured at the moment the work was created. If published without notice prior to 3/1/1989, copyright was forfeited, subject to the cure provision. Since March 1, 1989, the copyright notice requirement has been eliminated.

--
Terry Carroll       |    "Dreamwerks clearly caters to the  
Santa Clara, CA     |    pocket-protector niche..."
carroll[_at_]tjc.com     |       - Dreamwerks Production Group v. SKG Studio,
Modell delendus est |         case no. 96-55595 (9th Cir. Apr. 21 1998)