Re: Copyright Infringement Happening at Conference Group - Help!

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 only to published works, not unpublished works).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.
>
> 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. The important date is January 1,
> 1978 - since that date the existence of US copyright in a work has not
> required publication with notice.
>
> Yes, it is a true that notice requirements were further liberalized as
> of March 1, 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.
>
> 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.

The ability to cure a defect in copyright validity due to lack of notice under section 405 is certainly not the same as stating that copyright notice was not required. As Joseph and Terry pointed out, copyright notice was required on published works until the Berne Convention Implementation Act was effective on 3/1/89. Granted, the curing provisions of Section 405 lessened the severe consequences of publication without notice under the 1909 Act, yet it is important that the distinctions of these dates not be blurred. It is fair to say that the 1976 Act, effective on 1/1/78, liberalized the notice requirements of the 1909 Act by providing an ability to cure in certain circumstances, but it was not until the BCIA, effective on 3/1/89 that notice was no longer required on published works for federal copyright protection.

Rob Kasunic
rkasunic[_at_]kasunic.com
Adjunct, University of Baltimore School of Law Received on Tue Jul 21 1998 - 19:57:31 GMT