US (United States) Code. Title 17. Chapter 4: Copyright notice, deposit and registration

Codificación normativa de EEUU (Estados Unidos) Legislación Federal estadounidense # Copyrights

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publicidad

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17 USC CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND

REGISTRATION 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

.

-HEAD-

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

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Sec.

401. Notice of copyright: Visually perceptible copies.

402. Notice of copyright: Phonorecords of sound recordings.

403. Notice of copyright: Publications incorporating United States

Government works.

404. Notice of copyright: Contributions to collective works.

405. Notice of copyright: Omission of notice on certain copies and

phonorecords.

406. Notice of copyright: Error in name or date on certain copies

and phonorecords.

407. Deposit of copies or phonorecords for Library of Congress.

408. Copyright registration in general.

409. Application for copyright registration.

410. Registration of claim and issuance of certificate.

411. Registration and infringement actions.

412. Registration as prerequisite to certain remedies for

infringement.

AMENDMENTS

1988 - Pub. L. 100-568, Sec. 7(g), 9(b)(2), Oct. 31, 1988, 102

Stat. 2859, inserted in items 405 and 406 ''on certain copies and

phonorecords'' and substituted in item 411 ''Registration and

infringement actions'' for ''Registration as prerequisite to

infringement suit''.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in section 912 of this title.

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17 USC Sec. 401 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 401. Notice of copyright: Visually perceptible copies

-STATUTE-

(a) General Provisions. - Whenever a work protected under this

title is published in the United States or elsewhere by authority

of the copyright owner, a notice of copyright as provided by this

section may be placed on publicly distributed copies from which the

work can be visually perceived, either directly or with the aid of

a machine or device.

(b) Form of Notice. - If a notice appears on the copies, it shall

consist of the following three elements:

(1) the symbol (AF) (the letter C in a circle), or the word

''Copyright'', or the abbreviation ''Copr.''; and

(2) the year of first publication of the work; in the case of

compilations, or derivative works incorporating previously

published material, the year date of first publication of the

compilation or derivative work is sufficient. The year date may

be omitted where a pictorial, graphic, or sculptural work, with

accompanying text matter, if any, is reproduced in or on greeting

cards, postcards, stationery, jewelry, dolls, toys, or any useful

articles; and

(3) the name of the owner of copyright in the work, or an

abbreviation by which the name can be recognized, or a generally

known alternative designation of the owner.

(c) Position of Notice. - The notice shall be affixed to the

copies in such manner and location as to give reasonable notice of

the claim of copyright. The Register of Copyrights shall prescribe

by regulation, as examples, specific methods of affixation and

positions of the notice on various types of works that will satisfy

this requirement, but these specifications shall not be considered

exhaustive.

(d) Evidentiary Weight of Notice. - If a notice of copyright in

the form and position specified by this section appears on the

published copy or copies to which a defendant in a copyright

infringement suit had access, then no weight shall be given to such

a defendant's interposition of a defense based on innocent

infringement in mitigation of actual or statutory damages, except

as provided in the last sentence of section 504(c)(2).

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2576;

Pub. L. 100-568, Sec. 7(a), Oct. 31, 1988, 102 Stat. 2857.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

A requirement that the public be given formal notice of every

work in which copyright is claimed was a part of the first U.S.

copyright statute enacted in 1790, and since 1802 our copyright

laws have always provided that the published copies of copyrighted

works must bear a specified notice as a condition of protection.

Under the present law the copyright notice serves four principal

functions:

(1) It has the effect of placing in the public domain a

substantial body of published material that no one is interested

in copyrighting;

(2) It informs the public as to whether a particular work is

copyrighted;

(3) It identifies the copyright owner; and

(4) It shows the date of publication.

Ranged against these values of a notice requirement are its

burdens and unfairness to copyright owners. One of the strongest

arguments for revision of the present statute has been the need to

avoid the arbitrary and unjust forfeitures now resulting from

unintentional or relatively unimportant omissions or errors in the

copyright notice. It has been contended that the disadvantages of

the notice requirement outweigh its values and that it should

therefore be eliminated or substantially liberalized.

The fundamental principle underlying the notice provisions of the

bill is that the copyright notice has real values which should be

preserved, and that this should be done by inducing use of notice

without causing outright forfeiture for errors or omissions.

Subject to certain safeguards for innocent infringers, protection

would not be lost by the complete omission of copyright notice from

large numbers of copies or from a whole edition, if registration

for the work is made before or within 5 years after publication.

Errors in the name or date in the notice could be corrected without

forfeiture of copyright.

Sections 401 and 402 set out the basic notice requirements of the

bill, the former dealing with ''copies from which the work can be

visually perceived,'' and the latter covering ''phonorecords'' of a

''sound recording.'' The notice requirements established by these

parallel provisions apply only when copies or phonorecords of the

work are ''publicly distributed.'' No copyright notice would be

required in connection with the public display of a copy by any

means, including projectors, television, or cathode ray tubes

connected with information storage and retrieval systems, or in

connection with the public performance of a work by means of copies

or phonorecords, whether in the presence of an audience or through

television, radio, computer transmission, or any other process.

It should be noted that, under the definition of ''publication''

in section 101, there would no longer be any basis for holding, as

a few court decisions have done in the past, that the public

display of a work of art under some conditions (e.g., without

restriction against its reproduction) would constitute publication

of the work. And, as indicated above, the public display of a work

of art would not require that a copyright notice be placed on the

copy displayed.

Subsections (a) of both section 401 and section 402 require that

a notice be used whenever the work ''is published in the United

States or elsewhere by authority of the copyright owner.'' The

phrase ''or elsewhere,'' which does not appear in the present law,

makes the notice requirements applicable to copies or phonorecords

distributed to the public anywhere in the world, regardless of

where and when the work was first published. The values of notice

are fully applicable to foreign editions of works copyrighted in

the United States, especially with the increased flow of

intellectual materials across national boundaries, and the gains in

the use of notice on editions published abroad under the Universal

Copyright Convention should not be wiped out. The consequences of

omissions or mistakes with respect to the notice are far less

serious under the bill than under the present law, and section

405(a) makes doubly clear that a copyright owner may guard himself

against errors or omissions by others if he makes use of the

prescribed notice an express condition of his publishing licenses.

Subsection (b) of section 401, which sets out the form of notice

to appear on visually-perceptible copies, retains the basic

elements of the notice under the present law: the word

''Copyright'', the abbreviation ''Copr.'', or the symbol '' (AF)'';

the year of first publication; and the name of the copyright

owner. The year of publication, which is still significant in

computing the term and determining the status of a work, is

required for all categories of copyrightable works. Clause (2) of

subsection (b) makes clear that, in the case of a derivative work

or compilation, it is not necessary to list the dates of

publication of all preexisting material incorporated in the work;

however, as noted below in connection with section 409, the

application for registration covering a compilation or derivative

work must identify ''any preexisting work or works that it is based

on or incorporates.'' Clause (3) establishes that a recognizable

abbreviation or a generally known alternative designation may be

used instead of the full name of the copyright owner.

By providing simply that the notice ''shall be affixed to the

copies in such manner and location as to give reasonable notice of

the claim of copyright,'' subsection (c) follows the flexible

approach of the Universal Copyright Convention. The further

provision empowering the Register of Copyrights to set forth in

regulations a list of examples of ''specific methods of affixation

and positions of the notice on various types of works that will

satisfy this requirement'' will offer substantial guidance and

avoid a good deal of uncertainty. A notice placed or affixed in

accordance with the regulations would clearly meet the requirements

but, since the Register's specifications are not to ''be considered

exhaustive,'' a notice placed or affixed in some other way might

also comply with the law if it were found to ''give reasonable

notice'' of the copyright claim.

AMENDMENTS

1988 - Subsec. (a). Pub. L. 100-568, Sec. 7(a)(1), (2),

substituted ''General provisions'' for ''General requirement'' in

heading, and ''may be placed on'' for ''shall be placed on all'' in

text.

Subsec. (b). Pub. L. 100-568, Sec. 7(a)(3), substituted ''If a

notice appears on the copies, it'' for ''The notice appearing on

the copies''.

Subsec. (d). Pub. L. 100-568, Sec. 7(a)(4), added subsec. (d).

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

COMPLIANCE WITH PREDECESSOR NOTICE PROVISIONS; COPIES DISTRIBUTED

AFTER DEC. 31, 1977

Section 108 of Pub. L. 94-553 provided that: ''The notice

provisions of sections 401 through 403 of title 17 as amended by

the first section of this Act (sections 401 through 403 of this

title) apply to all copies or phonorecords publicly distributed on

or after January 1, 1978. However, in the case of a work published

before January 1, 1978, compliance with the notice provisions of

title 17 either as it existed on December 31, 1977, or as amended

by the first section of this Act, is adequate with respect to

copies publicly distributed after December 31, 1977.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 403, 404, 405 of this

title.

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17 USC Sec. 402 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 402. Notice of copyright: Phonorecords of sound recordings

-STATUTE-

(a) General Provisions. - Whenever a sound recording protected

under this title is published in the United States or elsewhere by

authority of the copyright owner, a notice of copyright as provided

by this section may be placed on publicly distributed phonorecords

of the sound recording.

(b) Form of Notice. - If a notice appears on the phonorecords, it

shall consist of the following three elements:

(1) the symbol P (the letter P in a circle); and

(2) the year of first publication of the sound recording; and

(3) the name of the owner of copyright in the sound recording,

or an abbreviation by which the name can be recognized, or a

generally known alternative designation of the owner; if the

producer of the sound recording is named on the phonorecord

labels or containers, and if no other name appears in conjunction

with the notice, the producer's name shall be considered a part

of the notice.

(c) Position of Notice. - The notice shall be placed on the

surface of the phonorecord, or on the phonorecord label or

container, in such manner and location as to give reasonable notice

of the claim of copyright.

(d) Evidentiary Weight of Notice. - If a notice of copyright in

the form and position specified by this section appears on the

published phonorecord or phonorecords to which a defendant in a

copyright infringement suit had access, then no weight shall be

given to such a defendant's interposition of a defense based on

innocent infringement in mitigation of actual or statutory damages,

except as provided in the last sentence of section 504(c)(2).

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2577;

Pub. L. 100-568, Sec. 7(b), Oct. 31, 1988, 102 Stat. 2857.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

A special notice requirement, applicable only to the subject

matter of sound recordings, is established by section 402. Since

the bill protects sound recordings as separate works, independent

of protection for any literary or musical works embodied in them,

there would be a likelihood of confusion if the same notice

requirements applied to sound recordings and to the works they

incorporate. Like the present law, therefore, section 402 thus

sets forth requirements for a notice to appear on the

''phonorecords'' of ''sound recordings'' that are different from

the notice requirements established by section 401 for the

''copies'' of all other types of copyrightable works. Since

''phonorecords'' are not ''copies,'' there is no need to place a

section 401 notice on ''phonorecords'' to protect the literary or

musical works embodied in the records.

In general, the form of the notice specified by section 402(b)

consists of the symbol ''P''; the year of first publication of the

sound recording; and the name of the copyright owner or an

admissible variant. Where the record producer's name appears on

the record label, album, sleeve, jacket, or other container, it

will be considered a part of the notice if no other name appears in

conjunction with it. Under subsection (c), the notice for a

copyrighted sound recording may be affixed to the surface, label,

or container of the phonorecord ''in such manner and location as to

give reasonable notice of the claim of copyright.''

There are at least three reasons for prescribing use of the

symbol ''P'' rather than '' (AF)'' in the notice to appear on

phonorecords of sound recordings. Aside from the need to avoid

confusion between claims to copyright in the sound recording and in

the musical or literary work embodied in it, there is also a

necessity for distinguishing between copyright claims in the sound

recording and in the printed text or art work appearing on the

record label, album cover, liner notes, et cetera. The symbol ''

(AF)'' has also been adopted as the international symbol for the

protection of sound recordings by the ''Phonograms Convention''

(the Convention for the Protection of Producers of Phonograms

Against Unauthorized Duplication of Their Phonograms, done at

Geneva October 29, 1971), to which the United States is a party.

AMENDMENTS

1988 - Subsec. (a). Pub. L. 100-568, Sec. 7(b)(1), (2),

substituted ''General provisions'' for ''General requirement'' in

heading, and ''may be placed on'' for ''shall be placed on all'' in

text.

Subsec. (b). Pub. L. 100-568, Sec. 7(b)(3), substituted ''If a

notice appears on the phonorecords, it'' for ''The notice appearing

on the phonorecords''.

Subsec. (d). Pub. L. 100-568, Sec. 7(b)(4), added subsec. (d).

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 403, 404, 405 of this

title.

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17 USC Sec. 403 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 403. Notice of copyright: Publications incorporating United

States Government works

-STATUTE-

Sections 401(d) and 402(d) shall not apply to a work published in

copies or phonorecords consisting predominantly of one or more

works of the United States Government unless the notice of

copyright appearing on the published copies or phonorecords to

which a defendant in the copyright infringement suit had access

includes a statement identifying, either affirmatively or

negatively, those portions of the copies or phonorecords embodying

any work or works protected under this title.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2577;

Pub. L. 100-568, Sec. 7(c), Oct. 31, 1988, 102 Stat. 2858.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Section 403 is aimed at a publishing practice that, while

technically justified under the present law, has been the object of

considerable criticism. In cases where a Government work is

published or republished commercially, it has frequently been the

practice to add some ''new matter'' in the form of an introduction,

editing, illustrations, etc., and to include a general copyright

notice in the name of the commercial publisher. This in no way

suggests to the public that the bulk of the work is uncopyrightable

and therefore free for use.

To make the notice meaningful rather than misleading, section 403

requires that, when the copies or phonorecords consist

''preponderantly of one or more works of the United States

Government,'' the copyright notice (if any) identify those parts of

the work in which copyright is claimed. A failure to meet this

requirement would be treated as an omission of the notice, subject

to the provisions of section 405.

AMENDMENTS

1988 - Pub. L. 100-568 amended section generally. Prior to

amendment, section read as follows: ''Whenever a work is published

in copies or phonorecords consisting preponderantly of one or more

works of the United States Government, the notice of copyright

provided by sections 401 or 402 shall also include a statement

identifying, either affirmatively or negatively, those portions of

the copies or phonorecords embodying any work or works protected

under this title.''

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 404, 405 of this title.

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17 USC Sec. 404 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 404. Notice of copyright: Contributions to collective works

-STATUTE-

(a) A separate contribution to a collective work may bear its own

notice of copyright, as provided by sections 401 through 403.

However, a single notice applicable to the collective work as a

whole is sufficient to invoke the provisions of section 401(d) or

402(d), as applicable with respect to the separate contributions it

contains (not including advertisements inserted on behalf of

persons other than the owner of copyright in the collective work),

regardless of the ownership of copyright in the contributions and

whether or not they have been previously published.

(b) With respect to copies and phonorecords publicly distributed

by authority of the copyright owner before the effective date of

the Berne Convention Implementation Act of 1988, where the person

named in a single notice applicable to a collective work as a whole

is not the owner of copyright in a separate contribution that does

not bear its own notice, the case is governed by the provisions of

section 406(a).

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2577;

Pub. L. 100-568, Sec. 7(d), Oct. 31, 1988, 102 Stat. 2858.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

In conjunction with the provisions of section 201(c), section 404

deals with a troublesome problem under the present law: the notice

requirements applicable to contributions published in periodicals

and other collective works. The basic approach of the section is

threefold:

(1) To permit but not require a separate contribution to bear

its own notice;

(2) To make a single notice, covering the collective work as a

whole, sufficient to satisfy the notice requirement for the

separate contributions it contains, even if they have been

previously published or their ownership is different; and

(3) To protect the interests of an innocent infringer of

copyright in a contribution that does not bear its own notice,

who has dealt in good faith with the person named in the notice

covering the collective work as a whole.

As a general rule, under this section, the rights in an

individual contribution to a collective work would not be affected

by the lack of a separate copyright notice, as long as the

collective work as a whole bears a notice. One exception to this

rule would apply to ''advertisements inserted on behalf of persons

other than the owner of copyright in the collective work.''

Collective works, notably newspapers and magazines, are major

advertising media, and it is common for the same advertisement to

be published in a number of different periodicals. The general

copyright notice in a particular issue would not ordinarily protect

the advertisements inserted in it, and relatively little

advertising matter today is published with a separate copyright

notice. The exception in section 404(a), under which separate

notices would be required for most advertisements published in

collective works, would impose no undue burdens on copyright owners

and is justified by the special circumstances.

Under section 404(b) a separate contribution that does not bear

its own notice, and that is published in a collective work with a

general notice containing the name of someone other than the

copyright owner of the contribution, is treated as if it has been

published with the wrong name in the notice. The case is governed

by section 406(a), which means that an innocent infringer who in

good faith took a license from the person named in the general

notice would be shielded from liability to some extent.

-REFTEXT-

REFERENCES IN TEXT

The effective date of the Berne Convention Implementation Act of

1988, referred to in subsec. (b), is Mar. 1, 1989, see section 13

of Pub. L. 100-568, set out as an Effective Date of 1988 Amendment

note under section 101 of this title.

-MISC2-

AMENDMENTS

1988 - Subsec. (a). Pub. L. 100-568, Sec. 7(d)(1), substituted

''to invoke the provisions of section 401(d) or 402(d), as

applicable'' for ''to satisfy the requirements of sections 401

through 403''.

Subsec. (b). Pub. L. 100-568, Sec. 7(d)(2), substituted ''With

respect to copies and phonorecords publicly distributed by

authority of the copyright owner before the effective date of the

Berne Convention Implementation Act of 1988, where'' for ''Where''.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

-CITE-

17 USC Sec. 405 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 405. Notice of copyright: Omission of notice on certain copies

and phonorecords

-STATUTE-

(a) Effect of Omission on Copyright. - With respect to copies and

phonorecords publicly distributed by authority of the copyright

owner before the effective date of the Berne Convention

Implementation Act of 1988, the omission of the copyright notice

described in sections 401 through 403 from copies or phonorecords

publicly distributed by authority of the copyright owner 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.

(b) Effect of Omission on Innocent Infringers. - Any person who

innocently infringes a copyright, in reliance upon an authorized

copy or phonorecord from which the copyright notice has been

omitted and which was publicly distributed by authority of the

copyright owner before the effective date of the Berne Convention

Implementation Act of 1988, incurs no liability for actual or

statutory damages under section 504 for any infringing acts

committed before receiving actual notice that registration for the

work has been made under section 408, if such person proves that he

or she was misled by the omission of notice. In a suit for

infringement in such a case the court may allow or disallow

recovery of any of the infringer's profits attributable to the

infringement, and may enjoin the continuation of the infringing

undertaking or may require, as a condition for permitting the

continuation of the infringing undertaking, that the infringer pay

the copyright owner a reasonable license fee in an amount and on

terms fixed by the court.

(c) Removal of Notice. - Protection under this title is not

affected by the removal, destruction, or obliteration of the

notice, without the authorization of the copyright owner, from any

publicly distributed copies or phonorecords.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2578;

Pub. L. 100-568, Sec. 7(e), Oct. 31, 1988, 102 Stat. 2858; Pub. L.

105-80, Sec. 12(a)(10), Nov. 13, 1997, 111 Stat. 1535.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Effect of Omission on Copyright Protection. The provisions of

section 405(a) make clear that the notice requirements of sections

401, 402, and 403 are not absolute and that, unlike the law now in

effect, the outright omission of a copyright notice does not

automatically forfeit protection and throw the work into the public

domain. This not only represents a major change in the theoretical

framework of American copyright law, but it also seems certain to

have immediate practical consequences in a great many individual

cases. Under the proposed law a work published without any

copyright notice will still be subject to statutory protection for

at least 5 years, whether the omission was partial or total,

unintentional or deliberate.

Under the general scheme of the bill, statutory copyright

protection is secured automatically when a work is created, and is

not lost when the work is published, even if the copyright notice

is omitted entirely. Subsection (a) of section 405 provides that

omission of notice, whether intentional or unintentional, does not

invalidate the copyright if either of two conditions is met:

(1) if ''no more than a relatively small number'' of copies or

phonorecords have been publicly distributed without notice; or

(2) if registration for the work has already been made, or is

made within 5 years after the publication without notice, and a

reasonable effort is made to add notice to copies or phonorecords

publicly distributed in the United States after the omission is

discovered.

Thus, if notice is omitted from more than a ''relatively small

number'' of copies or phonorecords, copyright is not lost

immediately, but the work will go into the public domain if no

effort is made to correct the error or if the work is not

registered within 5 years.

Section 405(a) takes a middle-ground approach in an effort to

encourage use of a copyright notice without causing unfair and

unjustifiable forfeitures on technical grounds. Clause (1)

provides that, as long as the omission is from ''no more than a

relatively small number of copies or phonorecords,'' there is no

effect upon the copyright owner's rights except in the case of an

innocent infringement covered by section 405(b); there is no need

for registration or for efforts to correct the error if this clause

is applicable. The phrase ''relatively small number'' is intended

to be less restrictive than the phrase ''a particular copy or

copies'' now in section 21 of the present law (section 21 of former

title 21).

Under clause (2) of subsection (a), the first condition for

curing an omission from a larger number of copies is that

registration be made before the end of 5 years from the defective

publication. This registration may have been made before the

omission took place or before the work had been published in any

form and, since the reasons for the omission have no bearing on the

validity of copyright, there would be no need for the application

to refer to them. Some time limit for registration is essential

and the 5-year period is reasonable and consistent with the period

provided in section 410(c).

The second condition established by clause (2) is that the

copyright owner make a ''reasonable effort,'' after discovering his

error, to add the notice to copies or phonorecords distributed

thereafter. This condition is specifically limited to copies or

phonorecords publicly distributed in the United States, since it

would be burdensome and impractical to require an American

copyright owner to police the activities of foreign licensees in

this situation.

The basic notice requirements set forth in sections 401(a) and

402(a) are limited to cases where a work is published ''by

authority of the copyright owner'' and, in prescribing the effect

of omission of notice, section 405(a) refers only to omission

''from copies or phonorecords publicly distributed by authority of

the copyright owner.'' The intention behind this language is that,

where the copyright owner authorized publication of the work, the

notice requirements would not be met if copies or phonorecords are

publicly distributed without a notice, even if he expected a notice

to be used. However, if the copyright owner authorized publication

only on the express condition that all copies or phonorecords bear

a prescribed notice, the provisions of section 401 or 402 and of

section 405 would not apply since the publication itself would not

be authorized. This principle is stated directly in section

405(a)(3).

Effect of Omission on Innocent Infringers. In addition to the

possibility that copyright protection will be forfeited under

section 405(a)(2) if the notice is omitted, a second major

inducement to use of the notice is found in subsection (b) of

section 405. That provision, which limits the rights of a copyright

owner against innocent infringers under certain circumstances,

would be applicable whether the notice has been omitted from a

large number or from a ''relatively small number'' of copies. The

general postulates underlying the provision are that a person

acting in good faith and with no reason to think otherwise should

ordinarily be able to assume that a work is in the public domain if

there is no notice on an authorized copy or phonorecord and that,

if he relies on this assumption, he should be shielded from

unreasonable liability.

Under section 405(b) an innocent infringer who acts ''in reliance

upon an authorized copy or phonorecord from which the copyright

notice has been omitted'', and who proves that he was misled by the

omission, is shielded from liability for actual or statutory

damages with respect to ''any infringing acts committed before

receiving actual notice'' of registration. Thus, where the

infringement is completed before actual notice has been served - as

would be the usual case with respect to relatively minor

infringements by teachers, librarians, journalists, and the like -

liability, if any, would be limited to the profits the infringer

realized from the act of infringement. On the other hand, where

the infringing enterprise is one running over a period of time, the

copyright owner would be able to seek an injunction against

continuation of the infringement, and to obtain full monetary

recovery for all infringing acts committed after he had served

notice of registration. Persons who undertake major enterprises of

this sort should check the Copyright Office registration records

before starting, even where copies have been published without

notice.

The purpose of the second sentence of subsection (b) is to give

the courts broad discretion to balance the equities within the

framework of section 405 (this section). Where an infringer made

profits from infringing acts committed innocently before receiving

notice from the copyright owner, the court may allow or withhold

their recovery in light of the circumstances. The court may enjoin

an infringement or may permit its continuation on condition that

the copyright owner be paid a reasonable license fee.

Removal of Notice by Others. Subsection (c) of section 405

involves the situation arising when, following an authorized

publication with notice, someone further down the chain of commerce

removes, destroys, or obliterates the notice. The courts dealing

with this problem under the present law, especially in connection

with copyright notices on the selvage of textile fabrics, have

generally upheld the validity of a notice that was securely

attached to the copies when they left the control of the copyright

owner, even though removal of the notice at some later stage was

likely. This conclusion is incorporated in subsection (c).

-REFTEXT-

REFERENCES IN TEXT

The effective date of the Berne Convention Implementation Act of

1988, referred to in subsecs. (a) and (b), is Mar. 1, 1989, see

section 13 of Pub. L. 100-568, set out as an Effective Date of 1988

Amendment note under section 101 of this title.

-MISC2-

AMENDMENTS

1997 - Subsec. (b). Pub. L. 105-80 substituted ''condition for

permitting the continuation'' for ''condition or permitting the

continuation''.

1988 - Pub. L. 100-568, Sec. 7(e)(3), substituted ''notice on

certain copies and phonorecords'' for ''notice'' in section

catchline.

Subsec. (a). Pub. L. 100-568, Sec. 7(e)(1), substituted ''With

respect to copies and phonorecords publicly distributed by

authority of the copyright owner before the effective date of the

Berne Convention Implementation Act of 1988, the omission of the

copyright notice described in'' for ''The omission of the copyright

notice prescribed by''.

Subsec. (b). Pub. L. 100-568, Sec. 7(e)(2), substituted ''omitted

and which was publicly distributed by authority of the copyright

owner before the effective date of the Berne Convention

Implementation Act of 1988,'' for ''omitted,''.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 101, 406 of this title.

-CITE-

17 USC Sec. 406 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 406. Notice of copyright: Error in name or date on certain

copies and phonorecords

-STATUTE-

(a) Error in Name. - With respect to copies and phonorecords

publicly distributed by authority of the copyright owner before the

effective date of the Berne Convention Implementation Act of 1988,

where the person named in the copyright notice on copies or

phonorecords publicly distributed by authority of the copyright

owner is not the owner of copyright, the validity and ownership of

the copyright are not affected. In such a case, however, any

person who innocently begins an undertaking that infringes the

copyright has a complete defense to any action for such

infringement if such person proves that he or she was misled by the

notice and began the undertaking in good faith under a purported

transfer or license from the person named therein, unless before

the undertaking was begun -

(1) registration for the work had been made in the name of the

owner of copyright; or

(2) a document executed by the person named in the notice and

showing the ownership of the copyright had been recorded.

The person named in the notice is liable to account to the

copyright owner for all receipts from transfers or licenses

purportedly made under the copyright by the person named in the

notice.

(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.

(c) Omission of Name or Date. - Where copies or phonorecords

publicly distributed before the effective date of the Berne

Convention Implementation Act of 1988 by authority of the copyright

owner contain no name or no date that could reasonably be

considered a part of the notice, the work is considered to have

been published without any notice and is governed by the provisions

of section 405 as in effect on the day before the effective date of

the Berne Convention Implementation Act of 1988.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2578;

Pub. L. 100-568, Sec. 7(f), Oct. 31, 1988, 102 Stat. 2858.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

In addition to cases where notice has been omitted entirely, it

is common under the present law for a copyright notice to be

fatally defective because the name or date has been omitted or

wrongly stated. Section 406 is intended to avoid technical

forfeitures in these cases, while at the same time inducing use of

the correct name and date and protecting users who rely on

erroneous information.

Error in Name. Section 406(a) begins with a statement that the

use of the wrong name in the notice will not affect the validity or

ownership of the copyright, and then deals with situations where

someone acting innocently and in good faith infringes a copyright

by relying on a purported transfer or license from the person

erroneously named in the notice. In such a case the innocent

infringer is given a complete defense unless a search of the

Copyright Office records would have shown that the owner was

someone other than the person named in the notice. Use of the

wrong name in the notice is no defense if, at the time infringement

was begun, registration had been made in the name of the true

owner, or if ''a document executed by the person named in the

notice and showing the ownership of the copyright had been

recorded.''

The situation dealt with in section 406(a) presupposes a

contractual relation between the copyright owner and the person

named in the notice. The copies or phonorecords bearing the

defective notice have been ''distributed by authority of the

copyright owner'' and, unless the publication can be considered

unauthorized because of breach of an express condition in the

contract or other reasons, the owner must be presumed to have

acquiesced in the use of the wrong name. If the person named in

the notice grants a license for use of the work in good faith or

under a misapprehension, that person should not be liable as a

copyright infringer, but the last sentence of section 406(a) would

make the person named in the notice liable to account to the

copyright owner for ''all receipts, from transfers or licenses

purportedly made under the copyright'' by that person.

Error in Date. The familiar problems of antedated and postdated

notices are dealt with in subsection (b) of section 406. In the

case of an antedated notice, where the year in the notice is

earlier than the year of first publication, the bill adopts the

established judicial principle that any statutory term measured

from the year of publication will be computed from the year given

in the notice. This provision would apply not only to the

copyright terms of anonymous works, pseudonymous works, and works

made for hire under section 302(c), but also to the presumptive

periods set forth in section 302(e).

As for postdated notices, subsection (b) provides that, where the

year in the notice is more than one year later than the year of

first publication the case is treated as if the notice had been

omitted and is governed by section 405. Notices postdated by one

year are quite common on works published near the end of a year,

and it would be unnecessarily strict to equate cases of that sort

with works published without notice of any sort.

Omission of Name or Date. Section 406(c) provides that, if the

copies or phonorecords ''contain no name or no date that could

reasonably be considered a part of the notice,'' the result is the

same as if the notice had been omitted entirely, and section 405

controls. Unlike the present law, the bill contains no provision

requiring the elements of the copyright notice to ''accompany''

each other, and under section 406(c) a name or date that could

reasonably be read with the other elements may satisfy the

requirements even if somewhat separated from them. Direct

contiguity or juxtaposition of the elements is no longer necessary;

but if the elements are too widely separated for their relation to

be apparent, or if uncertainty is created by the presence of other

names or dates, the case would have to be treated as if the name or

date, and hence the notice itself had been omitted altogether.

-REFTEXT-

REFERENCES IN TEXT

The effective date of the Berne Convention Implementation Act of

1988, referred to in text, is Mar. 1, 1989, see section 13 of Pub.

L. 100-568, set out as an Effective Date of 1988 Amendment note

under section 101 of this title.

-MISC2-

AMENDMENTS

1988 - Pub. L. 100-568, Sec. 7(f)(4), substituted ''date on

certain copies and phonorecords'' for ''date'' in section

catchline.

Subsec. (a). Pub. L. 100-568, Sec. 7(f)(1), substituted ''With

respect to copies and phonorecords publicly distributed by

authority of the copyright owner before the effective date of the

Berne Convention Implementation Act of 1988, where'' for ''Where''.

Subsec. (b). Pub. L. 100-568, Sec. 7(f)(2), inserted ''before the

effective date of the Berne Convention Implementation Act of 1988''

after ''distributed''.

Subsec. (c). Pub. L. 100-568, Sec. 7(f)(3), inserted ''before the

effective date of the Berne Convention Implementation Act of 1988''

after ''publicly distributed'' and ''as in effect on the day before

the effective date of the Berne Convention Implementation Act of

1988'' after ''section 405''.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 101, 404 of this title.

-CITE-

17 USC Sec. 407 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 407. Deposit of copies or phonorecords for Library of Congress

-STATUTE-

(a) Except as provided by subsection (c), and subject to the

provisions of subsection (e), the owner of copyright or of the

exclusive right of publication in a work published in the United

States shall deposit, within three months after the date of such

publication -

(1) two complete copies of the best edition; or

(2) if the work is a sound recording, two complete phonorecords

of the best edition, together with any printed or other visually

perceptible material published with such phonorecords.

Neither the deposit requirements of this subsection nor the

acquisition provisions of subsection (e) are conditions of

copyright protection.

(b) The required copies or phonorecords shall be deposited in the

Copyright Office for the use or disposition of the Library of

Congress. The Register of Copyrights shall, when requested by the

depositor and upon payment of the fee prescribed by section 708,

issue a receipt for the deposit.

(c) The Register of Copyrights may by regulation exempt any

categories of material from the deposit requirements of this

section, or require deposit of only one copy or phonorecord with

respect to any categories. Such regulations shall provide either

for complete exemption from the deposit requirements of this

section, or for alternative forms of deposit aimed at providing a

satisfactory archival record of a work without imposing practical

or financial hardships on the depositor, where the individual

author is the owner of copyright in a pictorial, graphic, or

sculptural work and (i) less than five copies of the work have been

published, or (ii) the work has been published in a limited edition

consisting of numbered copies, the monetary value of which would

make the mandatory deposit of two copies of the best edition of the

work burdensome, unfair, or unreasonable.

(d) At any time after publication of a work as provided by

subsection (a), the Register of Copyrights may make written demand

for the required deposit on any of the persons obligated to make

the deposit under subsection (a). Unless deposit is made within

three months after the demand is received, the person or persons on

whom the demand was made are liable -

(1) to a fine of not more than $250 for each work; and

(2) to pay into a specially designated fund in the Library of

Congress the total retail price of the copies or phonorecords

demanded, or, if no retail price has been fixed, the reasonable

cost to the Library of Congress of acquiring them; and

(3) to pay a fine of $2,500, in addition to any fine or

liability imposed under clauses (1) and (2), if such person

willfully or repeatedly fails or refuses to comply with such a

demand.

(e) With respect to transmission programs that have been fixed

and transmitted to the public in the United States but have not

been published, the Register of Copyrights shall, after consulting

with the Librarian of Congress and other interested organizations

and officials, establish regulations governing the acquisition,

through deposit or otherwise, of copies or phonorecords of such

programs for the collections of the Library of Congress.

(1) The Librarian of Congress shall be permitted, under the

standards and conditions set forth in such regulations, to make a

fixation of a transmission program directly from a transmission

to the public, and to reproduce one copy or phonorecord from such

fixation for archival purposes.

(2) Such regulations shall also provide standards and

procedures by which the Register of Copyrights may make written

demand, upon the owner of the right of transmission in the United

States, for the deposit of a copy or phonorecord of a specific

transmission program. Such deposit may, at the option of the

owner of the right of transmission in the United States, be

accomplished by gift, by loan for purposes of reproduction, or by

sale at a price not to exceed the cost of reproducing and

supplying the copy or phonorecord. The regulations established

under this clause shall provide reasonable periods of not less

than three months for compliance with a demand, and shall allow

for extensions of such periods and adjustments in the scope of

the demand or the methods for fulfilling it, as reasonably

warranted by the circumstances. Willful failure or refusal to

comply with the conditions prescribed by such regulations shall

subject the owner of the right of transmission in the United

States to liability for an amount, not to exceed the cost of

reproducing and supplying the copy or phonorecord in question, to

be paid into a specially designated fund in the Library of

Congress.

(3) Nothing in this subsection shall be construed to require

the making or retention, for purposes of deposit, of any copy or

phonorecord of an unpublished transmission program, the

transmission of which occurs before the receipt of a specific

written demand as provided by clause (2).

(4) No activity undertaken in compliance with regulations

prescribed under clauses (1) or (2) of this subsection shall

result in liability if intended solely to assist in the

acquisition of copies or phonorecords under this subsection.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2579;

Pub. L. 100-568, Sec. 8, Oct. 31, 1988, 102 Stat. 2859; Pub. L.

105-80, Sec. 12(a)(11), Nov. 13, 1997, 111 Stat. 1535.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The provisions of sections 407 through 411 of the bill mark

another departure from the present law. Under the 1909 statute,

deposit of copies for the collections of the Library of Congress

and deposit of copies for purposes of copyright registration have

been treated as the same thing. The bill's basic approach is to

regard deposit and registration as separate though closely related:

deposit of copies or phonorecords for the Library of Congress is

mandatory, but exceptions can be made for material the Library

neither needs nor wants; copyright registration is not generally

mandatory, but is a condition of certain remedies for copyright

infringement. Deposit for the Library of Congress can be, and in

the bulk of cases undoubtedly will be, combined with copyright

registration.

The basic requirement of the deposit provision, section 407, is

that within 3 months after a work has been published with notice of

copyright in the United States, the ''owner of copyright or of the

exclusive right of publication'' must deposit two copies or

phonorecords of the work in the Copyright Office. The Register of

Copyrights is authorized to exempt any category of material from

the deposit requirements. Where the category is not exempted and

deposit is not made, the Register may demand it; failure to comply

would be penalized by a fine.

Under the present law deposits for the Library of Congress must

be combined with copyright registration, and failure to comply with

a formal demand for deposit and registration results in complete

loss of copyright. Under section 407 of the bill, the deposit

requirements can be satisfied without ever making registration, and

subsection (a) makes clear that deposit ''is not a condition of

copyright protection.'' A realistic fine, coupled with the

increased inducements for voluntary registration and deposit under

other sections of the bill, seems likely to produce a more

effective deposit system than the present one. The bill's approach

will also avoid the danger that, under a divisible copyright, one

copyright owner's rights could be destroyed by another owner's

failure to deposit.

Although the basic deposit requirements are limited to works

''published with notice of copyright in the United States,'' they

would become applicable as soon as a work first published abroad is

published in this country through the distribution of copies or

phonorecords that are either imported or are part of an American

edition. With respect to all types or works other than sound

recordings, the basic obligation is to deposit ''two complete

copies of the best edition''; the term ''best edition,'' as defined

in section 101, makes clear that the Library of Congress is

entitled to receive copies of phonorecords from the edition it

believes best suits its needs regardless of the quantity or quality

of other U.S. editions that may also have been published before the

time of deposit. Once the deposit requirements for a particular

work have been satisfied under section 407, however, the Library

cannot claim deposit of future editions unless they represent newly

copyrightable works under section 103.

The deposit requirement for sound recordings includes ''two

complete phonorecords of the best edition'' and any other

visually-perceptible material published with the phonorecords. The

reference here is to the text or pictorial matter appearing on

record sleeves and album covers or embodied in separate leaflets or

booklets included in a sleeve, album, or other container. The

required deposit in the case of a sound recording would extend to

the entire ''package'' and not just to the disk, tape, or other

phonorecord included as part of it.

Deposits under section 407, although made in the Copyright

Office, are ''for the use or disposition of the Library of

Congress.'' Thus, the fundamental criteria governing regulations

issued under section 407(c), which allows exemptions from the

deposit requirements for certain categories of works, would be the

needs and wants of the Library. The purpose of this provision is to

make the deposit requirements as flexible as possible, so that

there will be no obligation to make deposits where it serves no

purpose, so that only one copy or phonorecord may be deposited

where two are not needed, and so that reasonable adjustments can be

made to meet practical needs in special cases. The regulations, in

establishing special categories for these purposes, would

necessarily balance the value of the copies or phonorecords to the

collections of the Library of Congress against the burdens and

costs to the copyright owner of providing them.

The Committee adopted an amendment to subsection (c) of section

407, aimed at meeting the concerns expressed by representatives of

various artists' groups concerning the deposit of expensive art

works and graphics published in limited editions. Under the

present law, optional deposit of photographs is permitted for

various classes of works, but not for fine prints, and this has

resulted in many artists choosing to forfeit copyright protection

rather than bear the expense of depositing ''two copies of the best

edition.'' To avoid this unfair result, the last sentence of

subsection (c) would require the Register to issue regulations

under which such works would either be exempted entirely from the

mandatory deposit or would be subject to an appropriate alternative

form of deposit.

If, within three months after the Register of Copyrights has made

a formal demand for deposit in accordance with section 407(d), the

person on whom the demand was made has not complied, that person

becomes liable to a fine up to $250 for each work, plus the ''total

retail price of the copies or phonorecords demanded.'' If no retail

price has been fixed, clause (2) of subsection (d) establishes the

additional amount as ''the reasonable cost to the Library of

Congress of acquiring them.'' Thus, where the copies or

phonorecords are not available for sale through normal trade

channels - as would be true of many motion picture films, video

tapes, and computer tapes, for example - the item of cost to be

included in the fine would be equal to the basic expense of

duplicating the copies or phonorecords plus a reasonable amount

representing what it would have cost the Library to obtain them

under its normal acquisitions procedures, if they had been

available.

There have been cases under the present law in which the

mandatory deposit provisions have been deliberately and repeatedly

ignored, presumably on the assumption that the Library is unlikely

to enforce them. In addition to the penalties provided in the

current bill, the last clause of subsection (d) would add a fine of

$2,500 for willful or repeated failure or refusal to deposit upon

demand.

The Committee also amended section 407 (this section) by adding a

new subsection (e), with conforming amendments of sections 407(a)

and 408(b). These amendments are intended to provide a basis for

the Library of Congress to acquire, as a part of the copyright

deposit system, copies or recordings of non-syndicated radio and

television programs, without imposing any hardships on

broadcasters. Under subsection (e) the Library is authorized to

tape programs off the air in all cases and may ''demand'' that the

broadcaster supply the Library with a copy or phonorecord of a

particular program. However, this ''demand'' authority is

extremely limited: (1) The broadcaster is not required to retain

any recording of a program after it has been transmitted unless a

demand has already been received; (2) the demand would cover only a

particular program; ''blanket'' demands would not be permitted; (3)

the broadcaster would have the option of supplying the demand by

gift, by loan for purposes of reproduction, or by sale at cost; and

(4) the penalty for willful failure or refusal to comply with a

demand is limited to the cost of reproducing and supplying the copy

or phonorecord in question.

AMENDMENTS

1997 - Subsec. (d)(2). Pub. L. 105-80 substituted ''cost to the

Library of Congress'' for ''cost of the Library of Congress''.

1988 - Subsec. (a). Pub. L. 100-568 struck out ''with notice of

copyright'' before ''in the United States''.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

DEPOSITS AND REGISTRATIONS MADE AFTER DECEMBER 31, 1977, IN

RESPONSE TO DEMAND UNDER PREDECESSOR DEMAND AND PENALTY PROVISIONS

Section 110 of Pub. L. 94-553 provided that: ''The demand and

penalty provisions of section 14 of title 17 as it existed on

December 31, 1977, apply to any work in which copyright has been

secured by publication with notice of copyright on or before that

date, but any deposit and registration made after that date in

response to a demand under that section shall be made in accordance

with the provisions of title 17 as amended by the first section of

this Act.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 408, 704, 708 of this

title; title 2 section 170.

-CITE-

17 USC Sec. 408 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 408. Copyright registration in general

-STATUTE-

(a) Registration Permissive. - At any time during the subsistence

of the first term of copyright in any published or unpublished work

in which the copyright was secured before January 1, 1978, and

during the subsistence of any copyright secured on or after that

date, the owner of copyright or of any exclusive right in the work

may obtain registration of the copyright claim by delivering to the

Copyright Office the deposit specified by this section, together

with the application and fee specified by sections 409 and 708.

Such registration is not a condition of copyright protection.

(b) Deposit for Copyright Registration. - Except as provided by

subsection (c), the material deposited for registration shall

include -

(1) in the case of an unpublished work, one complete copy or

phonorecord;

(2) in the case of a published work, two complete copies or

phonorecords of the best edition;

(3) in the case of a work first published outside the United

States, one complete copy or phonorecord as so published;

(4) in the case of a contribution to a collective work, one

complete copy or phonorecord of the best edition of the

collective work.

Copies or phonorecords deposited for the Library of Congress under

section 407 may be used to satisfy the deposit provisions of this

section, if they are accompanied by the prescribed application and

fee, and by any additional identifying material that the Register

may, by regulation, require. The Register shall also prescribe

regulations establishing requirements under which copies or

phonorecords acquired for the Library of Congress under subsection

(e) of section 407, otherwise than by deposit, may be used to

satisfy the deposit provisions of this section.

(c) Administrative Classification and Optional Deposit. -

(1) The Register of Copyrights is authorized to specify by

regulation the administrative classes into which works are to be

placed for purposes of deposit and registration, and the nature

of the copies or phonorecords to be deposited in the various

classes specified. The regulations may require or permit, for

particular classes, the deposit of identifying material instead

of copies or phonorecords, the deposit of only one copy or

phonorecord where two would normally be required, or a single

registration for a group of related works. This administrative

classification of works has no significance with respect to the

subject matter of copyright or the exclusive rights provided by

this title.

(2) Without prejudice to the general authority provided under

clause (1), the Register of Copyrights shall establish

regulations specifically permitting a single registration for a

group of works by the same individual author, all first published

as contributions to periodicals, including newspapers, within a

twelve-month period, on the basis of a single deposit,

application, and registration fee, under the following

conditions:

(A) if the deposit consists of one copy of the entire issue

of the periodical, or of the entire section in the case of a

newspaper, in which each contribution was first published; and

(B) if the application identifies each work separately,

including the periodical containing it and its date of first

publication.

(3) As an alternative to separate renewal registrations under

subsection (a) of section 304, a single renewal registration may

be made for a group of works by the same individual author, all

first published as contributions to periodicals, including

newspapers, upon the filing of a single application and fee,

under all of the following conditions:

(A) the renewal claimant or claimants, and the basis of claim

or claims under section 304(a), is the same for each of the

works; and

(B) the works were all copyrighted upon their first

publication, either through separate copyright notice and

registration or by virtue of a general copyright notice in the

periodical issue as a whole; and

(C) the renewal application and fee are received not more

than twenty-eight or less than twenty-seven years after the

thirty-first day of December of the calendar year in which all

of the works were first published; and

(D) the renewal application identifies each work separately,

including the periodical containing it and its date of first

publication.

(d) Corrections and Amplifications. - The Register may also

establish, by regulation, formal procedures for the filing of an

application for supplementary registration, to correct an error in

a copyright registration or to amplify the information given in a

registration. Such application shall be accompanied by the fee

provided by section 708, and shall clearly identify the

registration to be corrected or amplified. The information

contained in a supplementary registration augments but does not

supersede that contained in the earlier registration.

(e) Published Edition of Previously Registered Work. -

Registration for the first published edition of a work previously

registered in unpublished form may be made even though the work as

published is substantially the same as the unpublished version.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2580;

Pub. L. 100-568, Sec. 9(a), Oct. 31, 1988, 102 Stat. 2859; Pub. L.

102-307, title I, Sec. 102(e), June 26, 1992, 106 Stat. 266.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Permissive Registration. Under section 408(a), registration of a

claim to copyright in any work whether published or unpublished,

can be made voluntarily by ''the owner of copyright or of any

exclusive right in the work'' at any time during the copyright

term. The claim may be registered in the Copyright Office by

depositing the copies, phonorecords, or other material specified by

subsection (b) and (c), together with an application and fee.

Except where, under section 405(a), registration is made to

preserve a copyright that would otherwise be invalidated because of

omission of the notice, registration is not a condition of

copyright protection.

Deposit for Purpose of Copyright Registration. In general, and

subject to various exceptions, the material to be deposited for

copyright registration consists of one complete copy or phonorecord

of an unpublished work, and two complete copies or phonorecords of

the best edition in the case of a published work. Section 408(b)

provides special deposit requirements in the case of a work first

published abroad (''one complete copy or phonorecord as so

published'') and in the case of a contribution to a collective work

(''one complete copy or phonorecord of the best edition of the

collective work''). As a general rule the deposit of more than a

tear sheet or similar fraction of a collective work is needed to

identify the contribution properly and to show the form in which it

was published. Where appropriate as in the case of collective

works such as multivolume encyclopedias, multipart newspaper

editions, and works that are rare or out of print, the regulations

issued by the Register under section 408(c) can be expected to make

exceptions or special provisions.

With respect to works published in the United States, a single

deposit could be used to satisfy the deposit requirements of

section 407 and the registration requirements of section 408, if

the application and fee for registration are submitted at the same

time and are accompanied by ''any additional identifying material''

required by regulations. To serve this dual purpose the deposit

and registration would have to be made simultaneously; if a deposit

under section 407 had already been made, an additional deposit

would be required under section 408. In addition, since deposit for

the Library of Congress and registration of a claim to copyright

serve essentially different functions, section 408(b) authorizes

the Register of Copyrights to issue regulations under which deposit

of additional material, needed for identification of the work in

which copyright is claimed, could be required in certain cases.

Administrative Classification. It is important that the statutory

provisions setting forth the subject matter of copyright be kept

entirely separate from any classification of copyrightable works

for practical administrative purposes. Section 408(c)(1) thus

leaves it to the Register of Copyrights to specify ''the

administrative classes into which works are to be placed for

purposes of deposit and registration,'' and makes clear that this

administrative classification ''has no significance with respect to

the subject matter of copyright or the exclusive rights provided by

this title.''

Optional Deposit. Consistent with the principle of administrative

flexibility underlying all of the deposit and registration

provisions, subsection (c) of section 408 also gives the Register

latitude in adjusting the type of material deposited to the needs

of the registration system. The Register is authorized to issue

regulations specifying ''the nature of the copies of phonorecords

to be deposited in the various classes'' and, for particular

classes, to require or permit deposit of identifying material

rather than copies or phonorecords, deposit of one copy or

phonorecord rather than two, or, in the case of a group of related

works, a single rather than a number of separate registrations.

Under this provision the Register could, where appropriate, permit

deposit of phonorecords rather than notated copies of musical

compositions, allow or require deposit of print-outs of computer

programs under certain circumstances, or permit deposit of one

volume of an encyclopedia for purposes of registration of a single

contribution.

Where the copies or phonorecords are bulky, unwieldly, easily

broken, or otherwise impractical to file and retain as records

identifying the work registered, the Register would be able to

require or permit the substitute deposit of material that would

better serve the purpose of identification. Cases of this sort

might include, for example, billboard posters, toys and dolls,

ceramics and glassware, costume jewelry, and a wide range of

three-dimensional objects embodying copyrighted material. The

Register's authority would also extend to rare or extremely

valuable copies which would be burdensome or impossible to

deposit. Deposit of one copy or phonorecord rather than two would

probably be justifiable in the case of most motion pictures, and in

any case where the Library of Congress has no need for the deposit

and its only purpose is identification.

The provision empowering the Register to allow a number of

related works to be registered together as a group represents a

needed and important liberalization of the law now in effect. At

present the requirement for separate registrations where related

works or parts of a work are published separately has created

administrative problems and has resulted in unnecessary burdens and

expenses on authors and other copyright owners. In a number of

cases the technical necessity for separate applications and fees

has caused copyright owners to forego copyright altogether.

Examples of cases where these undesirable and unnecessary results

could be avoided by allowing a single registration include the

various editions or issues of a daily newspaper, a work published

in serial installments, a group of related jewelry designs, a group

of photographs by one photographer, a series of greeting cards

related to each other in some way, or a group of poems by a single

author.

Single Registration. Section 408(c)(2) directs the Register of

Copyrights to establish regulations permitting under certain

conditions a single registration for a group of works by the same

individual author, all first published as contributions to

periodicals, including newspapers, within a twelve-month period, on

the basis of a single deposit, application, and registration fee.

It is required that each of the works as first published have a

separate copyright notice, and that the name of the owner of

copyright in the work, (or an abbreviation by which the name can be

recognized, or a generally known alternative designation of the

owner) is the same in each notice. It is further required that the

deposit consist of one copy of the entire issue of the periodical,

or of the entire section in the case of a newspaper, in which each

contribution is first published. Finally, the application shall

identify each work separately, including the periodical containing

it and its date of first publication.

Section 408(c)(3) provides under certain conditions an

alternative to the separate renewal registrations of subsection

(a). If the specified conditions are met, a single renewal

registration may be made for a group of works by the same

individual author, all first published as contributions to

periodicals, including newspapers, upon the filing of a single

application and fee. It is required that the renewal claimant or

claimants, and the basis of claim or claims under section 304(a),

is the same for each of the works; that the works were all

copyrighted upon their first publication, either through separate

copyright notice and registration or by virtue of a general

copyright notice in the periodical issue as a whole; that the

renewal application and fee are received not more than twenty-eight

or less than twenty-seven years after December 31 of the calendar

year in which all of the works were first published; and that the

renewal application identifies each work separately, including the

periodical containing it and its date of first publication.

Corrections and Amplifications. Another unsatisfactory aspect of

the present law is the lack of any provision for correcting or

amplifying the information given in a completed registration.

Subsection (d) of section 408 would remedy this by authorizing the

Register to establish ''formal procedures for the filing of an

application for supplementary registration,'' in order to correct

an error or amplify the information in a copyright registration.

The ''error'' to be corrected under subsection (d) is an error by

the applicant that the Copyright Office could not have been

expected to note during its examination of the claim; where the

error in a registration is the result of the Copyright Office's own

mistake or oversight, the Office can make the correction on its own

initiative and without recourse to the ''supplementary

registration'' procedure.

Under subsection (d), a supplementary registration is subject to

payment of a separate fee and would be maintained as an independent

record, separate and apart from the record of the earlier

registration it is intended to supplement. However, it would be

required to identify clearly ''the registration to be corrected or

amplified'' so that the two registrations could be tied together by

appropriate means in the Copyright Office records. The original

registration would not be expunged or cancelled; as stated in the

subsection: ''The information contained in a supplementary

registration augments but does not supersede that contained in the

earlier registration.''

Published Edition of Previously Registered Work. The present

statute requires that, where a work is registered in unpublished

form, it must be registered again when it is published, whether or

not the published edition contains any new copyrightable material.

Under the bill there would be no need to make a second registration

for the published edition unless it contains sufficient added

material to be considered a ''derivative work'' or ''compilation''

under section 103.

On the other hand, there will be a number of cases where the

copyright owner, although not required to do so, would like to have

registration made for the published edition of the work, especially

since the owner will still be obliged to deposit copies or

phonorecords of it in the Copyright Office under section 407. From

the point of view of the public there are advantages in allowing

the owner to do so, since registration for the published edition

will put on record the facts about the work in the form in which it

is actually distributed to the public. Accordingly, section

408(e), which is intended to accomplish this result, makes an

exception to the general rule against allowing more than one

registration for the same work.

AMENDMENTS

1992 - Subsec. (a). Pub. L. 102-307 substituted ''At any time

during the subsistence of the first term of copyright in any

published or unpublished work in which the copyright was secured

before January 1, 1978, and during the subsistence of any copyright

secured on or after that date,'' for ''At any time during the

subsistence of copyright in any published or unpublished work,''.

1988 - Subsec. (a). Pub. L. 100-568, Sec. 9(a)(1), substituted

''Such'' for ''Subject to the provisions of section 405(a), such''.

Subsec. (c)(2). Pub. L. 100-568, Sec. 9(a)(2), substituted ''the

following conditions:'' for ''all of the following conditions - '',

struck out subpar. (A) which read ''if each of the works as first

published bore a separate copyright notice, and the name of the

owner of copyright in the work, or an abbreviation by which the

name can be recognized, or a generally known alternative

designation of the owner was the same in each notice; and'', and

redesignated subpars. (B) and (C) as (A) and (B), respectively.

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102-307 effective June 26, 1992, but

applicable only to copyrights secured between January 1, 1964, and

December 31, 1977, and not affecting court proceedings pending on

June 26, 1992, with copyrights secured before January 1, 1964,

governed by section 304(a) of this title as in effect on the day

before June 26, 1992, except each reference to forty-seven years in

such provisions deemed to be 67 years, see section 102(g) of Pub.

L. 102-307, as amended, set out as a note under section 101 of this

title.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 302, 405, 601, 704, 708

of this title; title 2 section 170; title 28 section 4001.

-CITE-

17 USC Sec. 409 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 409. Application for copyright registration

-STATUTE-

The application for copyright registration shall be made on a

form prescribed by the Register of Copyrights and shall include -

(1) the name and address of the copyright claimant;

(2) in the case of a work other than an anonymous or

pseudonymous work, the name and nationality or domicile of the

author or authors, and, if one or more of the authors is dead,

the dates of their deaths;

(3) if the work is anonymous or pseudonymous, the nationality

or domicile of the author or authors;

(4) in the case of a work made for hire, a statement to this

effect;

(5) if the copyright claimant is not the author, a brief

statement of how the claimant obtained ownership of the

copyright;

(6) the title of the work, together with any previous or

alternative titles under which the work can be identified;

(7) the year in which creation of the work was completed;

(8) if the work has been published, the date and nation of its

first publication;

(9) in the case of a compilation or derivative work, an

identification of any preexisting work or works that it is based

on or incorporates, and a brief, general statement of the

additional material covered by the copyright claim being

registered;

(10) in the case of a published work containing material of

which copies are required by section 601 to be manufactured in

the United States, the names of the persons or organizations who

performed the processes specified by subsection (c) of section

601 with respect to that material, and the places where those

processes were performed; and

(11) any other information regarded by the Register of

Copyrights as bearing upon the preparation or identification of

the work or the existence, ownership, or duration of the

copyright.

If an application is submitted for the renewed and extended term

provided for in section 304(a)(3)(A) and an original term

registration has not been made, the Register may request

information with respect to the existence, ownership, or duration

of the copyright for the original term.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2582;

Pub. L. 102-307, title I, Sec. 102(b)(1), June 26, 1992, 106 Stat.

266.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The various clauses of section 409, which specify the information

to be included in an application for copyright registration, are

intended to give the Register of Copyrights authority to elicit all

of the information needed to examine the application and to make a

meaningful record of registration. The list of enumerated items

was not exhaustive; under the last clause of the section the

application may also include ''any other information regarded by

the Register of Copyrights as bearing upon the preparation or

identification of the work or the existence, ownership, or duration

of the copyright.''

Among the enumerated items there are several that are not now

included in the Copyright Office's application forms, but will

become significant under the life-plus-50 term and other provisions

of the bill. Clause (5), reflecting the increased importance of

the interrelationship between registration of copyright claims and

recordation of transfers of ownership, requires a statement of how

a claimant who is not the author acquired ownership of the

copyright. Clause (9) requires that, ''in the case of a

compilation or derivative work'' the application include ''an

identification of any preexisting work or works that it is based on

or incorporates, and a brief, general statement of the additional

material covered by the copyright claim being registered.'' It is

intended that, under this requirement, the application covering a

collection such as a song-book or hymnal would clearly reveal any

works in the collection that are in the public domain, and the

copyright status of all other previously-published compositions.

This information will be readily available in the Copyright Office.

The catch-all clause at the end of the section will enable the

Register to obtain more specialized information, such as that

bearing on whether the work contains material that is a ''work of

the United States Government.'' In the case of works subject to the

manufacturing requirement, the application must also include

information about the manufacture of the copies.

AMENDMENTS

1992 - Pub. L. 102-307 inserted at end ''If an application is

submitted for the renewed and extended term provided for in section

304(a)(3)(A) and an original term registration has not been made,

the Register may request information with respect to the existence,

ownership, or duration of the copyright for the original term.''

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102-307 effective June 26, 1992, but

applicable only to copyrights secured between January 1, 1964, and

December 31, 1977, and not affecting court proceedings pending on

June 26, 1992, with copyrights secured before January 1, 1964,

governed by section 304(a) of this title as in effect on the day

before June 26, 1992, except each reference to forty-seven years in

such provisions deemed to be 67 years, see section 102(g) of Pub.

L. 102-307, as amended, set out as a note under section 101 of this

title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 408, 506 of this title.

-CITE-

17 USC Sec. 410 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 410. Registration of claim and issuance of certificate

-STATUTE-

(a) When, after examination, the Register of Copyrights

determines that, in accordance with the provisions of this title,

the material deposited constitutes copyrightable subject matter and

that the other legal and formal requirements of this title have

been met, the Register shall register the claim and issue to the

applicant a certificate of registration under the seal of the

Copyright Office. The certificate shall contain the information

given in the application, together with the number and effective

date of the registration.

(b) In any case in which the Register of Copyrights determines

that, in accordance with the provisions of this title, the material

deposited does not constitute copyrightable subject matter or that

the claim is invalid for any other reason, the Register shall

refuse registration and shall notify the applicant in writing of

the reasons for such refusal.

(c) In any judicial proceedings the certificate of a registration

made before or within five years after first publication of the

work shall constitute prima facie evidence of the validity of the

copyright and of the facts stated in the certificate. The

evidentiary weight to be accorded the certificate of a registration

made thereafter shall be within the discretion of the court.

(d) The effective date of a copyright registration is the day on

which an application, deposit, and fee, which are later determined

by the Register of Copyrights or by a court of competent

jurisdiction to be acceptable for registration, have all been

received in the Copyright Office.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2582.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The first two subsections of section 410 set forth the two basic

duties of the Register of Copyrights with respect to copyright

registration: (1) to register the claim and issue a certificate if

the Register determines that ''the material deposited constitutes

copyrightable subject matter and that the other legal and formal

requirements of this title have been met,'' and (2) to refuse

registration and notify the applicant if the Register determines

that ''the material deposited does not constitute copyrightable

subject matter or that the claim is invalid for any other reason.''

Subsection (c) deals with the probative effect of a certificate

of registration issued by the Register under subsection (a). Under

its provisions, a certificate is required to be given prima facie

weight in any judicial proceedings if the registration it covers

was made ''before or within five years after first publication of

the work''; thereafter the court is given discretion to decide what

evidentiary weight the certificate should be accorded. This

five-year period is based on a recognition that the longer the

lapse of time between publication and registration the less likely

to be reliable are the facts stated in the certificate.

Under section 410(c), a certificate is to ''constitute prima

facie evidence of the validity of the copyright and of the facts

stated in the certificate.'' The principle that a certificate

represents prima facie evidence of copyright validity has been

established in a long line of court decisions, and it is a sound

one. It is true that, unlike a patent claim, a claim to copyright

is not examined for basic validity before a certificate is issued.

On the other hand, endowing a copyright claimant who has obtained a

certificate with a rebuttable presumption of the validity of the

copyright does not deprive the defendant in an infringement suit of

any rights, it merely orders the burdens of proof. The plaintiff

should not ordinarily be forced in the first instance to prove all

of the multitude of facts that underline the validity of the

copyright unless the defendant, by effectively challenging them,

shifts the burden of doing so to the plaintiff.

Section 410(d), which is in accord with the present practice of

the Copyright Office, makes the effective date of registration the

day when an application, deposit, and fee ''which are later

determined by the Register of Copyrights or by a court of competent

jurisdiction to be acceptable for registration'' have all been

received. Where the three necessary elements are received at

different times the date of receipt of the last of them is

controlling, regardless of when the Copyright Office acts on the

claim. The provision not only takes account of the inevitable

timelag between receipt of the application and other material and

the issuance of the certificate, but it also recognizes the

possibility that a court might later find the Register wrong in

refusing registration.

REGISTRATION OF CLAIMS TO COPYRIGHTS AND RECORDATION OF ASSIGNMENTS

OF COPYRIGHTS AND OTHER INSTRUMENTS UNDER PREDECESSOR PROVISIONS

Section 109 of Pub. L. 94-553 provided that: ''The registration

of claims to copyright for which the required deposit, application,

and fee were received in the Copyright Office before January 1,

1978, and the recordation of assignments of copyright or other

instruments received in the Copyright Office before January 1,

1978, shall be made in accordance with title 17 as it existed on

December 31, 1977.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 101 of this title.

-CITE-

17 USC Sec. 411 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 411. Registration and infringement actions

-STATUTE-

(a) Except for an action brought for a violation of the rights of

the author under section 106A(a), and subject to the provisions of

subsection (b), no action for infringement of the copyright in any

United States work shall be instituted until registration of the

copyright claim has been made in accordance with this title. In

any case, however, where the deposit, application, and fee required

for registration have been delivered to the Copyright Office in

proper form and registration has been refused, the applicant is

entitled to institute an action for infringement if notice thereof,

with a copy of the complaint, is served on the Register of

Copyrights. The Register may, at his or her option, become a party

to the action with respect to the issue of registrability of the

copyright claim by entering an appearance within sixty days after

such service, but the Register's failure to become a party shall

not deprive the court of jurisdiction to determine that issue.

(b) In the case of a work consisting of sounds, images, or both,

the first fixation of which is made simultaneously with its

transmission, the copyright owner may, either before or after such

fixation takes place, institute an action for infringement under

section 501, fully subject to the remedies provided by sections 502

through 506 and sections 509 and 510, if, in accordance with

requirements that the Register of Copyrights shall prescribe by

regulation, the copyright owner -

(1) serves notice upon the infringer, not less than 48 hours

before such fixation, identifying the work and the specific time

and source of its first transmission, and declaring an intention

to secure copyright in the work; and

(2) makes registration for the work, if required by subsection

(a), within three months after its first transmission.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2583;

Pub. L. 100-568, Sec. 9(b)(1), Oct. 31, 1988, 102 Stat. 2859; Pub.

L. 101-650, title VI, Sec. 606(c)(1), Dec. 1, 1990, 104 Stat. 5131;

Pub. L. 105-80, Sec. 6, Nov. 13, 1997, 111 Stat. 1532; Pub. L.

105-304, title I, Sec. 102(d), Oct. 28, 1998, 112 Stat. 2863.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The first sentence of section 411(a) restates the present

statutory requirement that registration must be made before a suit

for copyright infringement is instituted. Under the bill, as under

the law now in effect, a copyright owner who has not registered his

claim can have a valid cause of action against someone who has

infringed his copyright, but he cannot enforce his rights in the

courts until he has made registration.

The second and third sentences of section 411(a) would alter the

present law as interpreted in Vacheron & Constantin-Le Coultre

Watches, Inc. v. Benrus Watch Co., 260 F.2d 637 (2d Cir. 1958).

That case requires an applicant, who has sought registration and

has been refused, to bring an action against the Register of

Copyrights to compel the issuance of a certificate, before suit can

be brought against an infringer. Under section 411, a rejected

claimant who has properly applied for registration may maintain an

infringement suit if notice of it is served on the Register of

Copyrights. The Register is authorized, though not required, to

enter the suit within 60 days; the Register would be a party on the

issue of registrability only, and a failure by the Register to join

the action would ''not deprive the court of jurisdiction to

determine that issue.''

Section 411(b) is intended to deal with the special situation

presented by works that are being transmitted ''live'' at the same

time they are being fixed in tangible form for the first time.

Under certain circumstances, where the infringer has been given

advance notice, an injunction could be obtained to prevent the

unauthorized use of the material included in the ''live''

transmission.

AMENDMENTS

1998 - Subsec. (a). Pub. L. 105-304, in first sentence, struck

out ''actions for infringement of copyright in Berne Convention

works whose country of origin is not the United States and'' after

''Except for'' and inserted ''United States'' after ''copyright in

any''.

1997 - Subsec. (b)(1). Pub. L. 105-80 amended par. (1)

generally. Prior to amendment, par. (1) read as follows: ''serves

notice upon the infringer, not less than ten or more than thirty

days before such fixation, identifying the work and the specific

time and source of its first transmission, and declaring an

intention to secure copyright in the work; and''.

1990 - Subsec. (a). Pub. L. 101-650 inserted ''and an action

brought for a violation of the rights of the author under section

106A(a)'' after ''United States''.

1988 - Pub. L. 100-568, Sec. 9(b)(1)(A), substituted

''Registration and infringement actions'' for ''Registration as

prerequisite to infringement suit'' in section catchline.

Subsec. (a). Pub. L. 100-568, Sec. 9(b)(1)(B), substituted

''Except for actions for infringement of copyright in Berne

Convention works whose country of origin is not the United States,

and subject'' for ''Subject''.

Subsec. (b)(2). Pub. L. 100-568, Sec. 9(b)(1)(C), substituted

''work, if required by subsection (a),'' for ''work''.

EFFECTIVE DATE OF 1990 AMENDMENT

Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,

1990, see section 610 of Pub. L. 101-650, set out as an Effective

Date note under section 106A of this title.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 101, 412, 501 of this

title.

-CITE-

17 USC Sec. 412 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 4 - COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

-HEAD-

Sec. 412. Registration as prerequisite to certain remedies for

infringement

-STATUTE-

In any action under this title, other than an action brought for

a violation of the rights of the author under section 106A(a) or an

action instituted under section 411(b), no award of statutory

damages or of attorney's fees, as provided by sections 504 and 505,

shall be made for -

(1) any infringement of copyright in an unpublished work

commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first

publication of the work and before the effective date of its

registration, unless such registration is made within three

months after the first publication of the work.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2583;

Pub. L. 101-650, title VI, Sec. 606(c)(2), Dec. 1, 1990, 104 Stat.

5131.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The need for section 412 arises from two basic changes the bill

will make in the present law.

(1) Copyright registration for published works, which is useful

and important to users and the public at large, would no longer

be compulsory, and should therefore be induced in some practical

way.

(2) The great body of unpublished works now protected at common

law would automatically be brought under copyright and given

statutory protection. The remedies for infringement presently

available at common law should continue to apply to these works

under the statute, but they should not be given special statutory

remedies unless the owner has, by registration, made a public

record of his copyright claim.

Under the general scheme of the bill, a copyright owner whose

work has been infringed before registration would be entitled to

the remedies ordinarily available in infringement cases: an

injunction on terms the court considers fair, and his actual

damages plus any applicable profits not used as a measure of

damages. However, section 412 would deny any award of the special

or ''extraordinary'' remedies of statutory damages or attorney's

fees where infringement of copyright in an unpublished work began

before registration or where, in the case of a published work,

infringement commenced after publication and before registration

(unless registration has been made within a grace period of three

months after publication). These provisions would be applicable to

works of foreign and domestic origin alike.

In providing that statutory damages and attorney's fees are not

recoverable for infringement of unpublished, unregistered works,

clause (1) of section 412 in no way narrows the remedies available

under the present law. With respect to published works, clause (2)

would generally deny an award of those two special remedies where

infringement takes place before registration. As an exception,

however, the clause provides a grace period of three months after

publication during which registration can be made without loss of

remedies; full remedies could be recovered for any infringement

begun during the three months after publication if registration is

made before that period has ended. This exception is needed to

take care of newsworthy or suddenly popular works which may be

infringed almost as soon as they are published, before the

copyright owner has had a reasonable opportunity to register his

claim.

AMENDMENTS

1990 - Pub. L. 101-650 inserted ''an action brought for a

violation of the rights of the author under section 106A(a) or''

after ''other than'' in introductory provisions.

EFFECTIVE DATE OF 1990 AMENDMENT

Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,

1990, see section 610 of Pub. L. 101-650, set out as an Effective

Date note under section 106A of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 101, 104A of this title.

-CITE-