GENERAL

GUIDE

TO 

THE

COPYRIGHT

ACT

OF 

1976

SEPTEMBER 1977
GENERAL GUIDE TO THE COPYRIGHT ACT OF 1976

TABLE OF CONTENTS

Introduction

Historical Background - Chapter 1

Federal Preemption and Duration of Copyright - Chapter 2

Subject Matter of Copyright (including standards of copyrightability) -

Chapter 3

Eligibility for Copyright Protection in the United States - Chapter 4

Ownership and Transfers of Ownership - Chapter 5

Termination of Transfers and Licenses - Chapter 6

Scope of the Exclusive Rights Accorded Copyright Owners - Chapter 7

Fair Use and Other Limitations and Exemptions on Exclusive Rights -

sections 107, 108, 110, 112 - Chapter 8

The Compulsory Licenses and the Copyright Royalty Tribunal - Sections 111,

115, 116, 118 and Chapter 8 - Chapter 9

Notice of Copyright - Chapter 10

Deposit and Registration - Chapter 11

Manufacturing Requirements and Importation of Copies and Phonorecords -

Chapter 12

Infringement of Copyright and Remedies - Chapter 13

Administrative Provisions - Chapter 14

Appendices:

1. Overview of the law in outline form

2. Chart Comparing the Act of 1909 with the Act of 1976

3. Educational and Contu Guidelines

4. Official Source Materials on Copyright Revision
INTRODUCTION

The Copyright Act of 1976, Public Law 94-553 (90 Stat.

2541), is a general revision of the copyright law, Title 17, United 

States Code; it becomes fully effective on January 1, 1978. The

new law supersedes the Copyright Act of 1909, as amended, and is

the first extensive revision of the 1909 law.

Early in 1977 the Register of Copyrights established

in the Copyright Office a Revision Coordinating Committee, chaired

by the Register, to oversee the development and coordination of

plans for implementation of the new law. The Committee recognized

that an important part of this initial preparation was staff training

and it asked Marybeth Peters, Senior Attorney-Adviser, to plan,

organize, and conduct all internal training on the new law as well as

to coordinate all training activities outside of the Copyright

Office. As a result of her successful execution of the first part of

this assignment, 260 staff members, in 15 sessions of one and one-half

hours each, completed an intensive study of the new law; 125 other

staff members participated a "mini-course". Ms. Peters, who has a

teaching as well as a legal background, prepared all instructional

materials and designed the format for both the short- and long-term

courses.

Because Ms. Peters' instruction was basic and her "lesson

plans" comprehensive, the Copyright Office received repeated requests

for wider dissemination of her instructional materials. The Revision

Coordinating Committee is responding to this demand by publishing

Ms. Peters' guide. This general guide to the Copyright Act of

1976 is not an official summary of the law. It does not attempt to

deal with all of the issues raised by the revision legislation nor

to provide answers to legal questions. It is, however, an extensive

training tool, the text of which follows the language used by Ms.

Peters, with only a change in tense to avoid an appearance of

obsolescence on January 1, 1978.

In developing the lectures and lesson plans, Ms. Peters

relied heavily on the language of the law itself, the legislative

reports, and the various statements of the Register of Copyrights

to the Congress, i.e., the 1961 Report of the Register, 1965 Supplemental

Report, and the 1975 Second Supplemental Report. Copies of these

documents may be obtained by writing to the Copyright Office,

Library of Congress, Washington, D.C. 20559. The fee for the

1961 Report of the Register is $.45 while the fee for the 1965

Supplementary Report is $1.00; there is no charge for the rest

of the material.

THE VIEWS EXPRESSED IN THIS DOCUMENT ARE THOSE OF MS.

PETERS AND DO NOT NECESSARILY REFLECT THE OFFICIAL VIEWS OF EITHER

THE COPYRIGHT OFFICE OR ME LIBRARY OF CONGRESS.
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CHAPTER I

HISTORICAL BACKGROUND

Copyright in the United States stems from a 1710 English

statute known as the Statute of Anne. Following the American Revolution,

most of the states enacted copyright laws generally patterned after

this English act. The need for federal legislation, however, was

soon recognized, and when the U.S. Constitution was drafted the

principle of copyright was written into it. Article I, section 8

grants Congress the power "to promote the progress of science and

useful arts by securing for limited times to authors and inventors

the exclusive right to their respective writings and discoveries."

Thus, the primary purpose of copyright legislation is to foster the

creation and dissemination of intellectual works for the public

welfare; an important secondary purpose is to give creators the

reward due them for their contribution to society.

The first federal copyright statute was enacted in 1790

and covered maps, charts and books. This statute granted to authors

and proprietors a term of 14 years with the privilege of renewal for

a second term of 14 years. There were general revisions of the

copyright law in 1831, 1870 and 1909.

The law under which we have been operating for the past

68 years is the Act of March 4, 1909. This act is based on the

printing press as the prime disseminator of information. Significant

changes in technology have resulted in a wide range of new communications

techniques that were unknown in 1909--for example, radio, television,

communications satellites, cable television, computers, photocopying

machines, videotape recorders, etc., and there are promises of even

greater changes in the future. This growth in technology made

revision of the Act of 1909 imperative.

There were a number of unsuccessful attempts to revise the

1909 Act. The present revision effort began in 1955 when Congress

appropriated the funds for a comprehensive program of research which

produced a series of 35 studies analyzing what were then considered

to be the major problems. In addition, the Register of Copyrights

issued a report on the "General Revision of the U.S. Copyright Law,"

in 1961.
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Comments raised both by the studies and the Register's

Report led to a series of meetings with a panel of consultants

drawn from the copyright bar, representatives of the interested

parties, and the Copyright Office. These meetings spanned three

years and provided an opportunity to thrash out many of the problems.

Statutory drafts with deliberate alternatives included

were circulated for comment and Congressional consideration; then

an extraordinary process of compromise and negotiation began.

This process went on continuously for nearly fifteen years, down to

the very day the bill was finally passed by both Houses of Congress.

In 1967, after extensive hearings, the House of Representatives

passed a revision bill--H.R. 2512. It was hoped that the Senate

would take quick action on S. 597, the companion bill, but the cable

television issue appeared to be irresolvable at that time. There

then followed a long period of relative inaction. In 1974, however,

the revision effort again showed signs of life, and on September 9,

1974, by a vote of 70-1, the Senate passed S. 1361. It was, however,

too late for consideration of the bill by the House in that session

of Congress.

In 1976 Senator McClellan again introduced a copyright

revision bill, S. 22. On February 19, 1976, by a vote of 97-0,

the Senate passed it. On September 22, 1976, the House of Representatives

passed a revision bill which differed in part from the Senate version,

thus necessitating a Conference Committee. The Conference Report

was adopted by both houses on September 30, 1976, and on October

19, 1976, President Ford signed the revision bill into law. The new

copyright law, Public Law 94-553, with certain exceptions, takes

effect on January 1, 1978.

The Register of Copyrights, Barbara Ringer, speaking on

the revision bill, made the following comment:

"Except for the most prescriptive and technical

of its provisions, practically everything in the

bill is the product of at least one compromise,

and many provisions have evolved from a long series of

compromises reflecting constantly changing technology,

commercial and financial interests, political and

social conditions, judicial and administrative developments and--not least by any means--individual personalities.

The bill as a whole bespeaks concern for literally

hundreds of contending and overlapping special interests

from every conceivable segment of our pluralistic

society. It was not enough to reach compromise

on a particular point; all of the compromises had to

be kept in equilibrium so that one agreement did not

tip another over."
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She went on to conclude that "It is a source of wonder that somehow

all of this succeeded in the end." But succeed it did, and we

now have a new law which makes fundamental and pervasive changes

in the U.S. copyright system. Some of the changes are so profound

that they may mark a shift in direction for the very philosophy

of copyright itself.
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CHAPTER TWO

FEDERAL PREEMPTION AND DURATION OF COPYRIGHT

[Chapter 3, Sections 301 to 305]

SINGLE NATIONAL SYSTEM (Section 301)

Federal preemption represents the most basic change in the

U.S. copyright system since its inception. Instead of the present

dual system of protection of works under the common law before they

are published and under the federal statute after publication, the

new law would, under section 301, establish a single system of

statutory protection for all works fixed in a copy or phonorecord.

The common law would continue to protect works (such as live choreography

and improvisations) up to the time they are fixed in tangible form,

but upon fixation they would be subject to exclusive federal protection

under the statute, even though they are never published or registered.

Some of the primary advantages of a single federal system

are:

1. Promote national uniformity. One of the fundamental

purposes behind the copyright clause in the U.S.

Constitution was to avoid the difficulties of

determining and enforcing an author's rights under

different state laws. Today national uniformity

is more essential than ever because of the advanced

methods of disseminating an author's work.

2. Reduce the legal significance of "publication."

The concept of "publication" is outdated; undue

reliance on this concept has been one of the

most serious defects with the Act of 1909.

A single federal system will clear up what has

become a chaotic situation.

3. Implement the "limited times" yrovision in the

Constitution. Common law protection in unpublished works is now perpetual, no matter

how widely they may be disseminated by means

other than "publication." Section 301 will place

a time limit on the duration of exclusive rights

in this type of work and thus will aid scholarship

by making unpublished. undisseminated manuscripts

available after a reasonable time.
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4. Improve international dealings in copyrighted 

material. No other country has anything like

our present dual system. In an era when copyrighted works can be disseminated instantaneously

to every country, the need for effective international copyright relations, and the concomitant

need for national uniformity assume even greater

importance.

Exclusive Federal Jurisdiction (Section 301(a))

The intent of this subsection is to preempt and abolish any

rights under the common law or statutes of a state that are equivalent

to copyright and that extend to works coming within the scope of the

federal copyright law. Under section 301(a) all rights in the nature

of copyright (which are specified as "copyright, literary property

rights, or any equivalent legal or equitable right") are governed

exclusively by the federal copyright statute if the work is of a kind

covered by the statute. With the exception of sound recordings fixed

before February 15, 1972, states cannot offer a work protection

equivalent to copyright and it doesn't matter when the work was

created, or whether it is published or unpublished, in the public

domain, or copyrighted under the federal statute.

Section 1338 of Title 28, United States Code, also makes

clear that any action involving rights under the federal copyright

law would come within the exclusive jurisdiction of the federal

courts.

Rights Preserved by States (Section 301(b))

Any rights which a state may claim, which are not equivalent

to copyright, are preserved. Subsection (b) explicitly lists three

general areas left unaffected by the preemption: (1) subject matter

outside sections 102 and 103; (2) causes of action arising under

state law before the effective date of the statute; and (3) violations

of rights that are not equivalent to any of the exclusive rights

under copyright.

Sound Recordings (Section 301(c))

This subsection provides an exception for sound recordings

fixed before February 15, 1972 (the effective date of the law extending

federal copyright protection to this type of work). If this

provision were not included there would probably have been a resurgence

of piracy of sound recordings. States may, however, only protect

sound recordings fixed prior to February 15, 1972 and then may only

protect them until February 15, 2047.
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DURATION OF COPYRIGHT WORKS CREATED AFTER THE EFFECTIVE DATE OF NEW LAW,

JANUARY 1, 1978 (Section 302).

This section specifies the duration of copyright protection

under the new act.

Basic term. Life of the author plus fifty years

after his or her death is the term for works created

after January 1, 1978.

Joint works. In the case of joint works by two

or more authors who did not work for hire, the fifty

year period is measured from the date of the death

of the last surviving author.

Anonymous and pseudonymous works. In the case of

these works, the term lasts for 75 years from the year

of first publication or 100 years from the year of its

creation, whichever expires first. If the identity of

the anonymous or pseudonymous author is revealed in

the records of the Copyright Office, the term will be

based on the life of the identified author plus fifty

years.

Works made for hire. Term is 75 years from first

publication or 100 years from creation, whichever

is shorter. (Work made for hire is defined in

section 101.) Since, under 201(b) the employer

is considered the "author", it would not be appropriate

to base the term on the author's life.

Presumption of author's death. Subsection (e) provides

that, after a period of 75 years after first publication

or 100 years after creation of a work, whichever

expires first, users are entitled to rely on a

presumption if they have no knowledge of whether or

when a particular author died. Any person who obtains

from the Copyright Office the proper document ("a

certified report"), indicating that the records

disclose nothing to show that a particular author is

still living or died less than fifty years before, is

entitled to the presumption that the author has been

dead for at least fifty years. Reliance in good faith

will be a complete defense in an infringement action.
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Subsection (d) provides that any "interested" person

may record a statement of the death of an author or a statement

that the author is still living on a particular date.

There are a number of reasons for changing the term

of copyright protection from a set number of years to one

based upon the life of the author. Among those listed in

the legislative reports are:

1. 56 years is not long enough to insure an author

and his or her dependents the fair economic

benefits of the work. Also, life expectancy

has increased substantially.

2. Tremendous growth in the communications media

has substantially lengthened the commercial

life of many works. A short term discriminates

against serious works whose value may not be

recognized until many years after its creation.

3. There is no particular benefit to the public of a

short term. The price of public domain works is

usually no less than that of copyrighted works.

In some cases the lack of copyright protection

restrains dissemination since publishers cannot

risk investing unless they are assured of exclusive

rights.

4. The year of death is a simpler and clearer method

of computing the term. All of a particular

author's works will fall into the public domain at

the same time.

5. The renewal device, one of the worst features

of the 1909 Act will eventually be eliminated.

[NOTE: For works in their first term of statutory

protection on December 31, 1977, renewal in the

last (28th) year will still be necessary in order

to obtain the additional 47 years' protection. See

the discussion of section 304 below.]

6. It places the United States in conformity with

most of the international copyright community.

It eliminates a major barrier to U.S. adherence

to the Berne Copyright Union.
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DURATION OF COPYRIGHT IN PRE-EXISTING WORKS UNDER COMMON LAW

PROTECTION ON THE EFFECTIVE DATE OF THE NEW LAW. (Section 303).

For unpublished works already in existence on January

1, 1978, but not protected by statutory copyright and not yet in

the public domain, the new act generally provides automatic federal

copyright for the same life plus 50 or 75/100 year terms provided

for new works. All works in this category, however, are guaranteed

at least 25 years of statutory protection; the law specifies that

in no case will copyright in a work of this sort expire before

December 31, 2002, and if the work is published before that date the

term is extended by another 25 years, through the end of 2027.

DURATION OF SUBSISTING COPYRIGHTS (Section 304).

This section is a transitional provision, but an important

one. Subsection (a) deals with copyrights that are in their first

term on January 1, 1978. It provides for a first term of 28 years

from the date it was originally secured, with a right to a renewal

term of 47 years--extending the total potential term of copyright

protection to 75 years. The application for renewal term must be

submitted within one year before the expiration of the original term

by the same specified renewal claimants as under the 1909 Act. The

reason for retaining the renewal provision is that many of the

present expectancies in these works are the subject of existing

contracts, and it would be unfair and confusing to cut off or alter

these interests. [NOTE: Although section 304(a) reenacts and preserves

the renewal provision the definition of "posthumous" adopted in

Bartok V. Boosey & Hawkes, Inc., 523 F. 2d 941 (2d Cir. 1975) has

been included in both the House and Senate reports. The House report

defines it as "one to which no copyright assignment or other contract

for exploitation of the work has occurred during the author's lifetime,

rather than one which is simply first published after the author's

death." The Senate report states "The reference to a 'posthumous

work' in this section means one as to which no assignment has occurred

during an author's lifetime, rather than one which is simply first

published after the author's death."]

Subsection (b), which went into effect on October 19, 1976,

extends the renewal term automatically to a total of 75 years.

The last 19 years of the copyright term are subject to

a right of termination. [See Chapter 6.]
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EXPIRATION DATE (Section 305).

The new law provides that all terms of copyright will run

through the end of the calendar year in which they would otherwise

expire. This will not only affect the duration of copyrights, but

also the time limits for renewal registrations.

EXAMPLES OF DURATION AND RENEWAL UNDER SECTIONS 304 AND

305:

1. A book was first published with the required notice

of copyright on July 1, 1950. The claim was

subsequently registered in the Copyright Office.

Under the 1909 Act the term would run from July 1,

1950 to July 1, 1978, and renewal registration was

required to be made between July 1, 1977, and July

1, 1978.

Under the new law there are two possibilities:

a. If renewal is made before the effective

date of the new law--(renewed between

July 1, 1977, and December 31, 1977,)

section 304(b) is applicable and the

work is protected to December 31, 2025.

b. If renewal is not made before January

1, 1978, section 304(a) is applicable.

Under 304(a) a renewal application must

be made "within one year prior to the

expiration of the original term." While

the normal expiration of the original

term would be July 1, 1978, section

305 extends it to December 31, 1978.

Thus, an application received before or on

December 31, 1978, will be accepted.

The renewal term is for 47 years and the

work is protected until December 31,

2025.
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2. A musical composition is registered in unpublished

form on January 7, 1955.

Under the 1909 Act the term would run from January

7, 1955 to January 7, 1983. A renewal application

must be received between January 7, 1982, and January

7, 1983. An application received after January 7,

1983, would not be accepted.

Under the new law:

a. Must renew between December 31, 1982, and

December 31, 1983.

b. Renewal application received between

January 7, 1982 and December 31, 1982,

will not be accepted.

c. Renewal application received after

December 31, 1983, will not be accepted.

Section 304(a) provides that renewal application

and registration must be made "within one year prior

to the expiration of the original term." Normal

expiration would be January 7, 1983, (28 years

from the date the copyright was secured [here the

date of the unpublished registration]) but section

305 extends this to the end of the year in which

it would normally expire, in this case, December

31, 1983.
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CHAPTER THREE

SUBJECT MATTER OF COPYRIGHT (INCLUDING STANDARDS OF COPYRIGHTABILITY)

[Chapter I, Section 102, 103 and 105]

The copyright clause of the U.S. Constitution empowers

Congress to grant to authors the exclusive rights in their "writings."

The Act of 1909 repeats the constitutional phrase in Section 4

and grants copyright to "all the writings of an author." Although

the broad sweep of this phrase may imply that the statutory copyright

grant is co-extensive with the constitutional power, it is clear

that Congress has not exhausted the scope of "writings of an author"

in the 1909 law.

It is well established, by a long line of court decisions,

that in order to be copyrightable under the statute the work must meet

the following requirements:

(A) The work must be in the form of a "writing," i.e.,

it must be fixed in some tangible form from which

the work can be reproduced.

(B) The work must be a product of original creative

authorship. Two interrelated elements are required:

originality and creativity.

(1) The work must be original in the sense

that the author produced it by his own

intellectual effort, as distinguished

from merely copying a preexisting work.

There is no requirement of novelty,

ingenuity or esthetic merit.

(2) The work must represent an appreciable

amount of creative authorship.

The requirement of fixation is retained in the new law

and serves as the dividing line between common law and statutory

copyright. Under the definitions in section 101, a work is "fixed"

in a tangible medium of expression when its embodiment in a copy

or phonorecord, by or under the authority of the author, is sufficiently

permanent or stable to permit it to be perceived, reproduced, or

otherwise communicated for a period of more than transitory duration.
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The new copyright law substitutes the phrase "original

works of authorship" for "writings of an author" to clarify that the

Constitutional power has not been exhausted in the copyright

legislation. Also, this new phrase more accurately reflects the

variety of authorship covered by the copyright law. Moreover, it

seems that the phrase "original works of authorship" will permit

protection for new forms of expression without allowing unlimited

expansion into areas completely outside the present congressional

intent.

The standard of original, creative authorship is not

changed by the new law. All of the 14 classes mentioned in section

5 of the 1909 law are covered by the new law as well. For the

first time, however, pantomimes and choreography are specifically

recognized as copyrightable works.

The new law continues and clarifies the principle of

existing law that copyright in new versions covers only the new

material and does not enlarge the scope or duration of protection

in preexisting works. The new law specifically provides protection

for compilations. The term "new versions" is changed to "derivative

works." The intent is that the terms "compilations" and "derivative

works" include every copyrightable work that employs preexisting

material or data of any kind. A difference is that the new law

does not condition copyright in such works upon securing the consent

of the copyright owner of the previous material. Instead the new

law provides that protection does not extend to any part of the work

in which such material has been used unlawfully.

SUBJECT MATTER OF COPYRIGHT: IN GENERAL (Section 102)

Section 102 provides that copyright protection subsists

in "original works of authorship" fixed in tangible form. Seven

broad categories are listed:

(1) literary works;

(2) musical works, including any accompanying

words;

(3) dramatic works, including any accompanying

music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual

works; and

(7) sound recordings.
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These categories are illustrative and are not meant to be limitative.

The 1965 Supplementary Report of the Register of Copyrights states

the categories are overlapping and not mutually exclusive. "It is

quite conceivable, for example, that within itself a motion picture

might encompass copyrightable works falling into all of the other six

categories."

"Literary works," "pictorial, graphic, or sculptural

works," "motion pictures," "audiovisual works" and "sound recordings"

are defined in section 101. These definitions make clear the

distinction between "works" and "material objects." Thus, under

the new law a "book" is not a work of authorship but a particular

kind of "copy." Instead, as the legislative reports make clear, the

author may write a "literary work," which in turn can be embodied in

a wide range of "copies" and "phonorecords," including books, periodicals, computer punch cards, microfilm, tape recordings, etc.

It is Congress' intent (according to these reports) that

the standards of originality and creativity developed by the

courts under existing law should remain unchanged under the new

law. Thus, "deminimis" works, common or standard works, blank forms,

etc. will not be registrable.

Pantomimes and Choreographic Works. The old law

had no specific provision for copyright in choreographic works,

although they could be registered as a "dramatic work." The same is

true of pantomimes. To resolve any doubt as to the necessity for

dramatic content as a condition for protecting these recognized art

forms, the new law specifically mentions them. Choreographic works

are not defined in section 101 because the meaning is presumably

clear. The 1961 Report of The Register states, "For purposes of

copyright at least, the term 'choreographic works' is understood to

mean dane works created for presentation to an audience, thus

excluding ballroom and other social dance steps designed merely for

the personal enjoyment of the dancers." The legislative reports

state that "choreographic works" do not include social dance steps

and simple routines.

Computer Programs. Although they are not mentioned as

copyrightable subject matter in section 102(a) and they are not

referred to explicitly in the definition of "literary works" in

Section 101, a careful reading of the new law with the legislative

reports makes it clear that computer programs or "software" is

within the subject matter of copyright. The definition of "literary

works" refers to works expressed in "words, numbers, or other verbal

or numerical symbols or indicia."
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Section 102(b) states a fundamental principle: copyright

protection does not extend to ideas, systems, or methods, processes,

principles, etc., no matter how unique the concept. This proviso

was added as a result of the debate over the copyrightability of

computer programs, and is intended to make clear that, although

the programmer's "literary" expression, as embodied in a program,

would be copyrightable, his ideas, system and methodology would

not.

Typeface designs. House Report 94-1476 states that the

House Judiciary Committee wants to study whether typeface designs

should be included in a possible law to protect original designs

embodied in useful articles. (Page 50.) On page 55 of the same

report the following appears: "The Committee has considered, but

chosen to defer, the possibility of protecting the design of typefaces

..The Committee does not regard the design of typeface... to be

copyrightable 'pictorial, graphic, or sculptural work' within the

meaning of this bill and the application of the dividing line in

section 101." [NOTE: In Eltra Corp. v. Ringer, E.D. Va. Oct. 26,

1976 No. 76-264-A, the court found a typeface design to be a "work of

art" but refused to compel registration on the ground that Congress

had acquiesced in the "long standing" practice of the Copyright

Office of refusing to register such claims. 37 CFR section 202.10(c).

This case has been appealed.]

Works of Art and Ornamental Designs. The definition

of "pictorial, graphic, and sculptural works" in section 101 seeks

to draw as clear a line as possible between copyrightable works

of fine and applied art and uncopyrightable works of industrial

design.

Section 101 defines "pictorial, graphic and sculptural

works" as including "two-dimensional and three-dimensional works

of fine, graphic, and applied art, photographs, prints and art

reproductions, maps, globes, charts, technical drawings, diagrams,

and models. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian

aspects are concerned; the design of a useful article, as defined

in this section, shall be considered a pictorial, graphic, or sculptural

work only if, and only to the extent that, such design incorporates

pictorial, graphic, or sculptural features that can be identified

separately from, and are capable of existing independently of,

the utilitarian aspects of the article." The second sentence in this

definition is classic language and is drawn from Copyright Office

regulations promulgated in the 1940's and expressly endorsed by

the Supreme Court in Mazer v. Stein, 347 U.S. 201 (1954).
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The copyright revision bill had a Title II which in origin

and content was essentially a separate though related piece of

legislation entitled "Protection of Ornamental Designs of Useful

Articles." This was to provide a limited form of copyright protection

to the ornamental design elements of useful articles. The House

deleted Title II as did the Conference Committee. The House Report

states that it will be necessary for the Committee to reconsider the

question of design protection in new legislation during the 95th

Congress.

Sound Recordings. A sound recording is a work "that

results from the fixation of a series of musical, spoken, or other

sounds, but not including the sounds accompanying a motion picture or

other audiovisual work, regardless of the nature of the material

objects, such as disks, tapes, or other phonorecords" in which it may

be embodied. Protection extends only to the particular sounds of

which the recording consists, and would not prevent a separate

recording or another performance in which these sounds are imitated.

Thus, mere imitation of a recorded performance would not constitute a

copyright infringement even where one performer deliberately sets

out to simulate another's performance as exactly as possible.

SUBJECT MATTER OF COPYRIGHT: COMPILATIONS AND DERIVATIVE WORKS

(Section 103)

Section 103 complements section 102; it provides that

a compilation or derivative work is copyrightable if it represents

an "original work of authorship" and falls within one or more of

the categories listed in section 102(a). The standards of copyrightability that apply to entirely original works also apply to

those containing preexisting works.

The legislative reports state that section 103(b) is

intended to define, more sharply and more clearly than does section

7 of the Act of 1909, the important interrelationship and correlation

between protection of preexisting material and of "new" material

in a particular work. The most important point is that copyright

covers only the material added by the later author, and has no effect

one way or the other on the copyright or public domain status of

the preexisting material.
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Section 101 states that a "compilation" results from

the process of selecting, bringing together, organizing and arranging

previously existing material of all kinds, regardless of whether the

individual items in the material have been or ever could have been

subject to copyright. Thus, it would be possible to have a copyright

in a compilation of blank forms.

A "derivative" work requires a process of recasting,

transforming, or adapting "one or more preexisting works;" the

"preexisting work" must come within the general subject matter

of copyright set forth in section 102, regardless of whether it

is currently, or was ever, copyrighted.

Copyright is not conditioned upon the consent of the

copyright owner of the preexisting material. The new law provides

that protection does not extend to "any part of the work in which

such material has been used unlawfully." Thus, for example, an

unauthorized translation of a novel could not be copyrighted at all.

However, the owner of copyright in an anthology of poetry could sue

someone who infringed the whole anthology, even though the infringer

proves that publication of one of the poems was unauthorized. The

legislative reports indicate that the purpose of this is to prevent

an infringer from benefiting, through copyright protection, from his

unlawful act, but preserves protection for those parts of the work

that do not employ the preexisting work.

MATERIAL DENIED COPYRIGHT PROTECTION

The following are examples of types of works which

are denied U.S. copyright protection:

Works in the public domain. Section 103 of the Transitional

and Supplementary Provisions provides: This Act does not provide

copyright protection for any work that goes into the public domain

before January 1, 1978.

A work falls into the public domain, and is available to

everyone for use without payment or permission, when the copyright

owner has authorized publication of the work without the notice

of copyright required by the Act of 1909. It also enters the public

domain when the first 28th year term of copyright expires without

renewal.
- 3:7 -

Once a work has fallen into the public domain, copyright is lost permanently. The new law will not restore the copyright.

Ideas, methods, systems, principles. One of the fundamental

principles of both the old and new laws is that copyright does

not protect ideas, methods, systems, principles, etc. but rather

protects the particular manner in which they are expressed or described.

Section 102(b) contains this basic principle; it provides "[lin no

case does copyright protection for an original work of authorship

extend to any idea, procedure, process, system, method of operation,

concept, principle, or discovery, regardless of the form in which it

is described, explained, illustrated, or embodied in such work."

Common or standard works. Works consisting of information

that is common property containing no original authorship, such

as standard calendars, height and weight charts, tape measures and

rulers, and lists of tables taken from public documents or other

common sources are not subject to copyright protection.

Devices and blank forms. Devices for measuring, computing,

or use in conjunction with a machine are not subject to copyright

protection. Common examples are slide rules, wheel dials, and

nomograms. Ideas, methods, systems, mathematical principles, formulas,

and equations are not copyrightable, and the same is true of devices

based on them. The printed material of which a device usually consists

(lines, numbers, symbols, calibrations) likewise cannot be the

subject of copyright because this material is necessarily dictated by

the idea, principle, formula or standard of measurement involved.

Blank forms and similar works, designed to record rather than convey

information, are not subject to copyright protection either.

Deminimis works. There are certain works to which the

legal maxim of "de minimis non curat lex" (the law does not concern

itself with trifles) applies. These are works in which the creative

authorship is too sli;_4ht to be worthy of protection. Examples

include names, titles, slogans, mere variations of typographic

ornamentation, lettering or coloring, translation of a work from

aural to printed form, transliteration of existing harmonies in a

musical work from piano to guitar tablature or ukelele diagrams.

Works of the United States Government (Section 105).

This section states a basic premise of the Act of 1909--that works

produced for the U.S. Government by its officers and employees

as part of their official duties are not subject to U.S. copyright

protection. The new law makes it clear that this prohibition applies

to unpublished works as well as published ones. The National Technical

Information Service sought a limited exception to the prohibition
- 3:8 -

in section 105. The House version included such a provision which

was deleted by the Conference Committee. The Conference Report

states that a hearing on this issue should be scheduled for early in

the 95th Congress.

There is no mention of works prepared under a U.S. Government

contract or grant. The intent is to allow an agency to determine

whether or not an independent contractor or grantee is to be allowed

to have a copyright in works prepared in whole or in part with the

use of Government funds.

Section 105 allows the U.S. Government to hold copyrights

that have been transferred to it by "assignment, bequest, or otherwise."
- 4:1 -

CHAPTER FOUR

ELIGIBILITY FOR COPYRIGHT PROTECTION IN

THE UNITED STATES [Chapter I, Section 104]

Section 104 of the new law sets forth the basic criteria

under which works of foreign origin can be protected under the

United States copyright law. This section divides all works into

two categories--unpublished and published. There are no qualifications

of nationality and domicile with respect to unpublished works.

Published works are subject to protection if one of the

following four conditions is met:

1. On the date of first publication, one or more

of the authors is a national or domiciliary

of the U.S., or is a domiciliary or national,

or sovereign authority of a foreign nation that

is a party to a copyright treaty of which the

U.S. is also a party, or is a stateless person.

2. The work is first published in the U.S. or in a

foreign nation that, on the date of first publication,

is a party to the U.C.C.

3. The work is first published by the United Nations

or any of its specialized agencies, or by the

Organization of American States. (This represents

a treaty obligation of the U.S. [Second Protocol

of the U.C.C.])

4. The work comes within the scope of a Presidential

Proclamation. Thus, protection is available

to an alien author whose country is "proclaimed"

by the President as granting to U.S. citizens and

domiciliaries and to works first published in

the U.S. substantially the same rights it grants

to its own citizens. Section 104 of the Transitional

and Supplemental Provisions provides that all

proclamations issued by the President under 1(e)

or 9(b) of Title 17 as it existed on December 31,

1977, or under previous copyright statutes, shall

continue in force until terminated, suspended, or

revised by the President.
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The new law specifically recognizes stateless authors as

eligible for protection. Also, it broadens eligibility conditions

in three important ways:

First--it protects an author who is domiciled in a

foreign country with which the U.S. has

copyright relations through an international

treaty. Thus, even though the U.S. has no

relations with Iraq, an Iraqi author domiciled

in the United Kingdom, (a U.C.C. country)

would be eligible for protection here even if

he or she publishes in Iraq.

Second--the new law makes eligible works first

published either in the U.S. or another country

that is a party to the U.C.C., regardless of

the citizenship of the author.

Third- - all unpublished works, regardless of the

citizenship or domicile of the author are

eligible for U.S. copyright protection.

Finally, it is now clear that a work is subject to protection

in the U.S. even if only one of several authors is eligible.
- 5:1 -

CHAPTER FIVE

OWNERSHIP AND TRANSFERS OF OWNERSHIP

[Chapter 2, Sections 201, 202, 204 and 205]

Chapter 2 of the new law deals with ownership and transfer

of rights. The chapter begins with a reconfirmation that the fountainhead of copyright is the author, and that copyright ownership belongs

to him or her in the first instance. As under the 1909 Act, an

exception is made for works made for hire.

BASIC PRINCIPLES OF OWNERSHIP (Section 201(a))

Two basic and well established principles of copyright are

restated in this section: 1) that the source of copyright ownership

is the author of the work and 2) in the case of a "joint work" the

coauthors are coowners.

Section 101 makes it clear that a work is "joint" when

the authors collaborate with each other or if each of the authors

prepared his or her contribution with the knowledge and intention

that it would be merged with the contributions of other authors as

"inseparable or interdependent parts of a unitary whole."

The House Report indicates that the touchstone is intention

at the time the writing is done.

The definition in section 101 is the first legislative

definition of a joint work. Section 201 establishes the validity

of joint ownership. The respective rights of the coowners, however,

are not spelled out. The legislative reports state that the new law

adopts the courtmade law on this point; that is, the coowners shall

have the right to free use of the jointly owned property, subject

only to the duty to account to one another for the profits.

[Note: the definition in section 101 overrules the decisions

in the "Melancholy Baby" (Shapiro Bernstein & Co., Inc.v. Jerry Vogel 

Music Co., Inc., 161 F. 2d 406 (2d Cir. 1946) and "12th Street Rag"

(Shapiro Bernstein & Co., v. Jerry Vogel Music Co., 221 F. 2d 569 (2d

Cir. 1955) modified on rehearing, 223 F. 2d 25272d Cir. 1955))

cases. The test in these cases was "fusion of effort" rather than

intent at the time of the writing.]
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OWNERSHIP-WORKS MADE FOR HIRE (Section 201(b))

In this subsection another principle of the 1909 Act is

adopted--that in the case of a work made for hire the employer is

considered the author and is regarded as the initial owner of copyright

unless there has been an agreement to the contrary. The definition

of a "work made for hire" in section 101, however, appears narrower

than the present case law.

A basic principle of American copyright law is that all

rights to a work produced by an employee within the scope of his

or her employment vest in the employer. This has been well established

by the courts and in section 26 of the 1909 law. The rationale for

this rule is that the work is produced under the employer's direction

and expense; also the employer bears the risks and should be entitled

to reap the benefits.

Works made on commission are those produced as the result

of a special order, rather than in the normal course of employment.

They are not mentioned in the 1909 law. In the cases concerning

these works, courts have generally recognized copyright ownership

in the party commissioning the work and not in the creator of the

work.

This subsection vests all copyright interests in the

employer in a work made for hire. It goes beyond the old law by

codifying the idea that the parties may agree otherwise as to copyright ownership. Such an agreement must be in writing and must

be signed by the parties. [NOTE: This section refers to "the

employer or other person for whom the work was prepared." "Other

person" apparently was included to make it clear that the person

who commissions a work which fits within the definition in section

101 of a work made for hire shall be regarded as the author.

In section 101 of the new law, the definition of a "work

made for hire" is divided into two sections. First, it says that it

is a "work prepared by an employee within the scope of his or her

employment." The second part is somewhat of a departure from previous

interpretations. As the House Report notes on page 121, the status of

works prepared on special order or commission was a major issue in

revision. This definition represents a carefully balanced compromise.

It spells out those specific categories of commissioned works that

can be considered "works made for hire" under certain circumstances.

The categories are:
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1. a contribution to a collective work

2. part of a motion picture or other audiovisual

work

3. a translation

4. a supplementary work (which is defined as prepared

for publication as a secondary adjunct to a work

by another for purposes of illustrating, introducing,

concluding, etc., or assisting in the use of the

other work, such as forewards, afterwords, answer

material for tests, maps, musical arrangements,

bibliographies, etc.)

5. a compilation

6. an instructional text, which is defined as "a

literary, pictorial, or graphic work prepared

for publication with the purpose of use in

systematic instructional activities." (Thus,

books used in teaching.)

7. a test

8. answer material for a test

9. an atlas.

HOWEVER, this is conditioned upon an express agreement in writing

signed by the parties. This agreement must state that the work

"shall be considered a work made for hire."

CONTRIBUTIONS TO COLLECTIVE WORKS (Section 201(c))

This subsection seeks to clarify one of the most difficult

questions under the existing law--the ownership of contributions to

periodicals and other collective works. It states that copyright in

a contribution is separate and distinct from copyright in the collective

work as a whole, and that, in absence of an express transfer, the

owner of the collective work obtains only certain limited rights with

respect to each contribution.
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The first sentence in this subsection provides that "Copyright in each separate contribution to a collective work is distinct

from copyright in the collective work as a whole, and vests initially

in the author of the contribution." This is intended to establish

that the copyright in a contribution and the copyright in the collective

work in which it appears are two different things, and that the

usual role with respect to initial ownership applies to the contribution.

Section 101 defines a "collective work" as "a work, such

as a periodical issue, anthology, or encyclopedia, in which a

number of contributions, constituting separate and independent works

in themselves, are assembled into a collective whole."

The second sentence in 201(c), in conjunction with section

404, preserves the author's copyright in his contribution without

requiring a separate notice in his name or an unqualified transfer of

all his rights to the publisher.

The new law establishes a presumption that, in the absence

of an express transfer, the author retains all rights except, "the

privilege of reproducing and distributing the contribution as part

of that particular collective work, any revision of that collective

work, and any later collective work in the same series."

Under this presumption, for example, an encyclopedia

pu'Aisher would be entitled to reprint an article in a revised

edition of an encyclopedia, and a magazine publisher would be

entitled to reprint a story in a later issue of the same periodical.

The privileges extended under the presumption, however, do not

permit revisions in the contribution itself or allow inclusion of the

contribution in anthologies or other entirely different collective

works.

DIVISIBILITY OF COPYRIGHTS (Section 201(d))

In theory, under the 1909 law, a copyright was considered a

single, indivisible bundle of exclusive rights. Thus, the old law

regarded copyright as a single, indivisible entity; this means that a

transfer of less than the entire rights to a work was merely a

license which allowed the holder to use the work in a specified way

but did not permit him to exercise any right of ownership.
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This theory in practice is unworkable, and copyright

proprietors, with the sanction of the courts, have developed customs

and usages on the basis that copyright is divisible. Various subsidiary

rights have been created and marketed separately--e.g., magazine

rights, paperback rights, book club rights, motion picture rights,

foreign rights, etc. The copyright has also been licensed for a

period of time and/or for a particular territory.

Tension between theory and practice under the present

law has produced some strange and unjust results in those cases

where courts have not been able to accomodate copyright theory to

commercial reality.

Section 201(d)(2) contains the first explicit statutory

recognition of the principle of divisibility of copyright in U.S.

law. This provision was long sought by authors. It means that

any of the exclusive rights that go to make up a copyright, including

those listed in section 106 and any subdivision of them, can be

transferred and separately owned. The definition of "transfer

of copyright ownership" in section 101 makes it clear that the

principle of divisibility applies whether or not the transfer is

"limited in time or place of effect."

Note, too, that section 101 provides that the term "copyright

owner" refers to the owner of a particular right.

The granting of a non-exclusive license, however, does

_

not constitute a transfer of ownership, but only a right of usage.

The second sentence of 201(d)(2) provides that "The owner

of any particular right is entitled, to the extent of that right, to

all of the protection and remedies accorded to the copyright owner

by this title." Thus, an exclusive licensee would be given standing

to sue to protect that interest. This provision caused some concern;

some felt that if ownership rights were split, a user might then be

liable to a multiplicity of suits. The Justice Department raised

this issue in 1967. This problem is solved in section 501(b),

however, by setting certain limitations on the right to sue. It

gives the court discretion to require a notice to all interested

parties, and to order the joinder of any party whose interest might

be affected by an infringement proceeding.
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TRANSFERABILITY

(Section 201(d)(1)) states the fundamental rule that

ownership of all or any part of a copyright is fully transferable

from one owner to another by any form of assignment or conveyance or

by operation of law, and that, upon the death of an owner is to be

treated as personal property.

The statement of this principle is supplemented by the

definition of transfer of ownership in section 101. The definition

is intended, among other things, to dispel any doubts as to whether

mortgages or other hypothecations, discharges of mortgages and

exclusive licenses come within the meaning of a "transfer of copyright

ownership."

INVOLUNTARY TRANSFERS (Section 201(e))

The legislative reports state that the purpose of this

section is to reaffirm the basic principle that the U.S. copyright of

an individual author shall be secured to that author, and cannot be

taken away by involuntary transfer. The intent is that the author is

entitled, despite any purported expropriation or involuntary transfer,

to continue to exercise all rights under the U.S. law, and specifically

that the governmental body or organization may not enforce or exercise

any rights in that situation.

DISTINCTION BETWEEN COPYRIGHTS AND MATERIAL OBJECTS

(Section 202)

The language in this section makes it clear that, unless an

author expressly transferred the rights in a particular work, the

sale of a material object (e.g., a manuscript or a painting) does not

carry with it the copyright in the work.

All this section really says is that copyright is one

thing and the material object in which the work is embodied is

another; that ownership of one is distinct from ownership of the

other; that the transfer of ownership of one does not, in and of

itself, transfer ownership of the other.

EXECUTION OF TRANSFERS OF COPYRIGHT OWNERSHIP (Section 204)

This section retains the requirement that transfers of

copyright ownership be in writing and signed by the owner. The new

law allows the transfer to be signed either "by the owner of the

rights conveyed" or "by such owner's duly authorized agent."
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Section 204 could have considerable impact since in the

new law unpublished works are placed under the federal statute and

thus subject to the above requirement, i.e., that all transfers be in

writing.

Subsection (b) broadens and liberalizes the provision

in the 1909 law regarding certificates of acknowledgment. It provides

that these certificates would be prima facie evidence of the executioa

of any domestic or foreign transfer (although they would not affect

the validity of a transfer).

RECORDATION OF TRANSFERS AND OTHER DOCUMENTS (Section 205)

The House Report states that section 205 is intended

to clear up a number of uncertainties arising from sections 30 and 31

of the 1909 law and to make the recording and priority provisions

more effective and practical.

Any "document pertaining to a copyright" may be recorded

if it bears the actual signature of the person who executed it

or is accompanied by a sworn or official certification that it

is a true copy. The House Report suggests rather strongly that

the Copyright Office will record self-serving or colorable documents

(page 128) and the Register is told to take care that their nature

is not concealed from the public in the office's indexing and search

reports.

Subsection (c) provides that recordation of a document

constitutes constructive notice (this is a conclusion of law that

cannot be contradicted) of the facts it states only if it meets

two requirements:

1. it specifically identifies the work to which

it pertains so that after the document is indexed

by the Copyright Office, it would be revealed by

a "reasonable search" under the title or registration

number; and

2. registration for the work has been made.

Subsection (d) requires a transferee to record his or

her instrument of transfer as a condition to bringing an infringement

suit, and thereby to place on public record the basis on which

ownership is claimed. This subsection also makes it clear that a

delay in making recordation until after an infringement has occured

will not affect the transferee's rights or remedies against the

infringer.
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Subsection (e) resolves the priorities between conflicting

transfers, by retaining the current policy in favor of the initial

transfer, if properly recorded. It also retains the concept of a

grace period but shortens it to one month for documents executed in

the U.S. and 2 months for those executed abroad. This section also

makes a binding promise to pay royalties, a form of valuable consideration

and therfore repudiates the decision in Rossiter v. Vogel, 134 F.

2d 908 (2d Cir. 1943).

Subsection (f) provides that whether recorded or not, a

nonexeclusive license taken without notice of a prior unrecorded

transfer would be valid against the transferee, and an unrecorded

nonexclusive license would be valid as against a subsequent transfer.
- 6:1 -

CHAPTER SIX

TERMINATION OF TRANSFERS AND LICENSES

[Chapter 2, Section 203 and Chapter 3, Section 304(c)]

Section 24 of the old law embodies what is known as the

renewal provision. This section provided that copyright would

generally revert to the author, if living, or if the author were

not living, to other specified beneficiaries if a renewal claim

were registered in the 28th year of the original term. This provision was included in the 1909 Act to give authors a "second chance"

to reap the benefits of their creative efforts. In practice, however,

the second chance did not materialize because the author assigned

the contingent rights in the renewal term well before his or her

rights vested, and the assignee reaped the benefits of the renewal

term if the author survived until the renewal vested. Moreover,

failure to comply with the registration formality led to many forfeitures.

It is generally acknowledged that during the early stages

of the revision effort, "the most explosive and difficult issue"

concerned a provision for protecting authors against unfair copyright

transfers. The aim was to protect authors against unremunerative

transfers and to get rid of the complexity, awkwardness, and unfairness

of the renewal provision. As both the House and Senate reports note,

the problem stems from the unequal bargaining position of authors and

from the impossibility of determining a work's value until it has

been exploited.

In 1965 representatives of publishers and authors met

and agreed on a proposal which became, in essence, section 203 of

the new law. This agreement essentially ended debate on the subject.

The sections covering termination rights are complex;

the majority of material is presented in a question and answer format

to make it more understandable.

WHAT MAY BE TERMINATED AND BY WHOM UNDER SECTION 203

What grants are covered?

Grants by the author (other than by will) of exclusive

or nonexclusive rights arising under the new law, but

not including works made for hire, may be terminated.

This applies only to grants made on or after January 1,

1978--there is no retroactive effect. [Note that transfers

made by an author's successors in interest are not covered.]
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Who may terminate?

The author or, if he is deceased, a majority of owners

of his termination interest--i.e., widow or widower and

children or grandchildren may terminate. The key is

that those who own a total of more than one half of the

interest may exercise the right of termination. In works

of joint authorship, where the grant was signed by two or

more authors, a majority of those who signed it must join

to terminate.

TERMINATION AFTER AUTHOR'S DEATH (Section 203(a)(2))

In the case of an author who is dead, his or her termination

interest is owned and may be exercised by the following:

1. Where author dies and only a widow or widower

survives and there are no children, then the

widow or widower owns the entire termination

interest.

2. Where there is no widow or widower but there

are surviving children, then the children own the

entire termination interest.

3. Where both a widow or widower and a child or

children survive, then the widow or widower

own 50%, and the child or children own 50%.

[Note: The rights of the author's children

and grandchildren are, in all cases, divided

among them and exercised on a per stirpes basis

and the share of the children of a dead child, for

example, can be only exercised by a majority of

them. Per stirpes--when descendants take by

representation of their parent--i.e., child or

children take among them the share their parent

would have taken, if living.]

An example is given on page 125 of the House Report. A

deceased author leaves a widow, two living children, and three

grandchildren by a third child who is dead.
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Widow gets 50% and the children of the author will

divide 50%. Each of the three children would be

entitled to 16 2/3% but Child 3 is dead. Per stirpes

means that the three offspring of Child 3 will share

Child 3's share. Thus, each of the three grandchildren

get about 5 1/2%.

As the example points out, the widow is a necessary

party in termination because she owns 50%. To get

the majority she can be joined by either Child 1

or Child 2. But if neither join her she must get a

majority of the grandchildren. Thus, even though

the widow and one grandchild would own 55 1/2%,

they would have to be joined by another child or

grandchild to effect a termination or make a further

transfer of reverted rights.

WHEN AND HOW TERMINATION IS EFFECTED (Section 203(3))

When may termination be effected?

Termination may be effected during the five years

beginning at the end of 35 years from the date of the

grant, or, if the grant covers the right of publication,

35 years from the date of publication or 40 years from

the date of the grant, whichever is shorter.

How may termination be effected?

Termination may be effected by serving a written

notice no less than two nor more than ten years

before termination is to take effect. Notice must

comply with Copyright Office regulations and a copy

of the notice must be recorded in this Office before

the effective date of the termination.

Two examples from the House Report are:

1. Contract for theatrical production signed on

September 2, 1987. Termination of grant can

be made to take effect between September 2, 2022

(35 years from execution) and September 1, 2027

(end of 5-year termination period). Assuming

author decides to terminate on September 2, 2022

the advance notice must be filed between September 2,

2012 and September 2, 2020.
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2. Contract for book publication executed on April 10,

1980; book finally published on August 23,

1987. Since contract covers the right of publication,

the 5-year termination period would begin on April 10,

2020 (40 years from execution) rather than

April 10, 2015 (35 years from execution) or

August 23, 2022 (35 years from publication).

Assuming that author decided to make the termination

effective on January 1, 2024, the advance notice

would have to be served between January 1, 2014

and January 1, 2022.

THE EFFECT OF TERMINATION

All rights revert to those with a right to terminate except

that derivative works prepared before termination may

continue to be utilized under the terms of the grant.

Rights revert to everyone who owns termination interests on

the date the notice was served, whether they joined in

signing or not.

Rights vest on the date that the notice is served. If

beneficiary dies, his heirs would inherit his or her share.

In addition, the law provides that a further grant or

agreement to make a further grant of any right covered by a terminated

grant is valid only if it is signed by the same number and proportion

of owners, in whom the right has vested..., as are required to terminate

the grant. Section 203(b)(3).

Moreover, such further grant or agreement is valid only

if made after the effective date of termination, except that a

new transfer to the original grantee or his successor may be made

after the notice of termination is served. Section 203(b)(4). In

effect this gives the original grantee or his successor a right of

first refusal and a preference over others since such grantee or

successor may have a two to ten year lead time in dealing for the

rights.

[NOTE: Section 203(a)(5) provides that "termination of

the grant may be effected notwithstanding any agreement to the

contrary, including an agreement to make a will or to make any future

grant.]

TERMINATIONS OF TRANSFERS AND LICENSES COVERING THE

EXTENDED RENEWAL TERM (Section 304(c))

What grants are covered?

Grants made by the author or grants executed by

those beneficiaries of the author who could claim

renewal under the present law may be terminated. Only

grants covering the renewal copyright and only grants

made prior to January 1, 1978 are covered. There are

no termination rights in works made for hire.
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Who may terminate?

The author, or if he or she is deceased, his family

may terminate. The shares are the same as spelled

out earlier under section 203.

When may termination be effected?

Termination may be effected during a five-year period

which begins at the end of 56 years from the date

copyright was originally secured, or on January 1, 1978,

whichever is later.

How may termination be effected?

Termination may be effected by serving a written

notice upon the grantee or the grantee's successor in

title. Where grant is executed by a person or persons

other than the author, all of those who executed the

grant and survive, or their duly authorized agents,

must sign the notice. Notice must comply with Copyright

Office regulations. A copy of the notice must be

recorded in the Copyright Office before the effective

date of termination.

What is the effect of termination?

All rights revert to those with a right to terminate

except that derivative works prepared before termination

may continue to be utilized under the terms of the

grant. No new derivative works may be prepared after

the effective date of termination. Termination rights

vest on the date the notice is served.

NOTE: Some works will not be subject to any termination

rights. Section 304(c) applies only to grants made

prior to January 1, 1978 and section 203 applies only

to grants made on or after that date. Section 203

termination rights apply only to grants made by the

author, and works made for hire are not subject to

termination.
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Examples:

1. A publishing company, on July 1, 1977, makes a contract

with Norbert Novelist for a new book. The book is

not written until July 20, 1979. The rights transferred

in the July 1, 1977 contract would not be subject

to termination. The grant was made before January 1,

1977 but not for a work in which copyright was subsisting

on the effective date of the new law.

2. An author writes book in 1970; the work is never published

and no rights in the work were assigned during the

author's lifetime--author died in August of 1980. In

June of 1981 the author's widow of grants a publishing

company certain rights. Those rights are not subject

to termination. Only section 203 can apply and that

section is limited to grants made by the author.
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CHAPTER SEVEN

SCOPE OF THE EXCLUSIVE RIGHTS ACCORDED COPYRIGHT OWNERS

[Chapter I, section 106]

The section setting forth the exclusive rights of the

copyright owner is the heart of any copyright law. This section

determines the limits of protection granted to authors and their

successors in interest.

As the 1965 Supplementary Report of the Register states,

"in a narrow view, all of the author's exclusive rights translate

into money: whether he should be paid for a particular use or

whether it should be free." This Report also notes that "[t]he

basic legislative problem is to insure that the copyright law provides

the necessary monetary incentive to write, produce, publish, and

disseminate creative works, while at the same time guarding against

the danger that these works will not be disseminated and used as

fully as they should because of copyright restrictions."

The drafters of the new law took particular pains not

to confine the scope of an author's rights on the basis of the

present technology. Thus, the exclusive rights of an author

are stated in broad terms.

Section 106 grants five basic and exclusive rights. The

right to display a work publicly is specifically stated for the first

time. Detailed limitations and exemptions follow in sections 107

through 118; these sections, therefore, must always be read in

conjunction with section 106.

The House Report notes that the rights in section 106

are cumulative and to some extent overlap. For example, the preparation

of a derivative work would usually also involve its reproduction.

The rights stated may be subdivided without limitation.

Each subdivision of an exclusive right may be owned and enforced

separately (section 201(d)(2)).

Reproduce the copyrighted work in copies or phonorecords 

The right to reproduce the work is the most fundamental

right granted by any copyright law. The terms "copies" and "phonorecords" include the first or original embodiment of the work (the

prototype), as well as any other objects from which the work can be

"perceived, reproduced, or otherwise communicated, either directly or

with the aid of a machine or device."
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Prepare derivative works 

The right to prepare new versions of copyrighted works is a

valuable one, and its existence permits the copyright owner to

control uses of his work that might not otherwise be included in the

reproduction. A derivative work is defined in section 101 as a work

based upon on or more preexisting works such as a translation,

musical arrangement, dramatization, fictionalization, motion picture

version, sound recording, art reproduction, abridgment, condensation,

or any other form in which a work may be recast, transformed, or

adapted.

Public distribution 

This right includes distribution by sale, gift, or other

transfer of ownership of the material object embodying the work,

or by rental, lease, or lending the material object. The exclusive

right to sell a copyrighted work is terminated on the first authorized

sale, and a copyright owner is not permitted to control future

disposition of sold copies of the work. This is made clear by

section 109 which draws a basic distinction between the rights

of a copyright owner and the rights of someone who owns a physical

object (a copy or phonorecord) that embodies a copyrighted work.

Section 109 states that once a copy or phonorecord has been lawfully

made, it can be disposed of by its owner without the copyright

owner's permission.

Public performing right 

For certain kinds of works, the right of public performance

has become the most important. The right of public performance

under 106(4) extends to "literary, musical, dramatic, and choreographic

works, pantomimes, and motion pictures and other audiovisual works;"

there is no such right for sound recordings.

Unlike the present law, this right is not limited by

any "for profit" requirement. There are, however, a number of

exemptions and limitations in sections 107 through 118.

The exclusive right of public performance has been expanded

to include motion pictures and other audiovisual works. Performance

of an audiovisual work means to show the images in any sequence

and to make any sounds accompanying the work audible. The House and

Senate Reports state that the showing of portions of motion pictures,

filmstrips, or slide sets sequentially will constitute a "performance"

rather than a "display."
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Under the definition of "perform" in section 101 it is

clear that the following would constitute a performance of a work:

live renditions that are face to face, renditions from recordings,

broadcasting, retransmission by loudspeakers, and transmission and

retransmissions by cable, microwave, etc. To perform publicly is

defined as performing at a place open to the public or at a place

where a substantial number of persons outside of a normal circle of a

family and its social acquaintances is gathered.

Right of public display 

This is the only right granted under the new law whose

existence is open to question under the old law.

By definition (section 101) to "display" a work means

to show a copy of it, either directly or by means of a film, slide,

television image, or any other device or process or, in the case of a

motion picture or other audiovisual work, to show individual images

nonsequentially. Thus, subject to the limitations imposed by

section 109, the right of public display applies to any work embodied

in manuscript or printed matter and in pictorial, graphic, and

sculptural works, including "stills." Exhibition of a motion picture

or other audiovisual work as a whole is a performance rather than a

display.

Section 109(b) states that the owner of a lawfully-made

copy can display it publicly to viewers present at the same place 

as the copy. Thus, the exclusive right of public display would

not apply where the owner of a copy wishes to show it directly

to the public, as in a gallery or display case, or indirectly through

an opaque projector.
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CHAPTER EIGHT

FAIR USE AND OTHER LIMITATIONS AND EXEMPTIONS

ON EXCLUSIVE RIGHTS

[Sections 107, 108, 110, 112]

FAIR USE (Section 107)

Although fair use (a doctrine developed by the courts)

was not included in any copyright statute prior to the 1976 Act,

the concept is firmly established in everyday usage. The concept

of "fair use" is not susceptible to exact definition. Generally

speaking, however, it allows copying without permission from, or

payment to, the copyright owner where the use is reasonable and not

harmful to the rights of the copyright owner.

Section 107 is somewhat vague since it would be difficult

to prescribe precise rules to cover all situations. It refers to

"purposes such as criticism, comment, news reporting, teaching

(including multiple copies for classroom use), scholarship, or

research" and sets out four factors to be considered in determining

whether or not a particular use is fair. These are:

1. The purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit

educational purposes;

2. The amount and substantiality of the portion used in

relation to the copyrighted work as a whole;

3. The nature of the copyrighted work; and

4. The effect of the use upon the potential market for

or value of the copyrighted work.

These criteria are not necessarily the sole criteria that a court

may consider. Section 107 makes it clear that the factors a court

shall consider shall "include" these four; section 101, the definitional

section of the new law, states that the terms "including" and "such

as" are illustrative and not limitative.
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The legislative reports state that section 107 as drafted is

intended to restate the present judicial doctrine; it is not intended

to change, narrow or enlarge it in any way.

One thing is clear--the language of section 107 does not

provide specific tests by which one can determine with much certainty

whether or not a particular use is fair. The difficulty of arriving

at a clear-cut definition is inherent in the nature of the doctrine.

The House and Senate Reports state:

Although the courts have considered and ruled upon

the doctrine of fair use over and over again, no real

definition of this concept has ever emerged. Indeed,

since the doctrine is an equitable rule of reason,

no generally applicable definition is possible, and

each case raising the question must be decided on its own

facts.

Under these circumstances the various interest groups tried

to work out some compromises. Three different educational groups,

dealing respectively with copying for teacher and classroom use of

print materials, photocopying of music, and audiovisual presentations

met separately with authors' and publishers' organizations to work out

guidelines. These efforts were successful in the music and print

field. No agreement was reached on audiovisual works although attempts

are still being made to resolve this issue.

The guidelines for books and periodicals appear in Appendix

3. They may be briefly summarized as covering: (1) single copies for

teachers, (2) multiple classroom copies, and (3) prohibitions. Multiple

classroom copying cannot exceed the number of pupils per class, must

meet strict tests of brevity, spontaneity and noncumulative effect, and

must include a notice of copyright.

The prohibitions include:

1. the copies may not be used as a substitute for

anthologies, compilations or collective works;

2. copies cannot be made of consumable material

such as work books;

3. the copies cannot be a substitute for purchases,

be "directed by higher authority" or be repeated

by the same teacher from term to term; and

4. there can be no charge to the student beyond the

actual copying cost.
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The music guidelines follow much the same pattern. They

allow emergency copying to replace previously purchased copies for

use in an immediate performance. Copying of excerpts of no more

than 10% of the whole work is allowed for academic purposes other

than performance. The excerpts cannot constitute a performable unit

such as a section, movement or aria. Editing and simplifying

purchased works is allowed as is the production of single copies of

certain sound recordings for certain educational purposes.

Both sets of guidelines state that they constitute the minimum

and not the maximum standards of educational fair use under section 107.

They also state:

The parties agree that the conditions determining the

extent of permissible copying for educational purposes

may change in the future; that certain types of copying

permitted under these guidelines may not be permissible

in the future; and conversely that in the future other

types of copying not permitted under these guidelines

may be permissible under revised guidelines....There may

be instances in which copying which does not fall within

the guidelines stated.. .may nonetheless be permitted

under the criteria of fair use.

The House Report states that the Judiciary Committee believes

that the guidelines are a reasonable interpretation of the minimum

standards of fair use. It notes that teachers will know that copying

within the guidelines is fair use and that the guidelines, therefore,

serve the purpose of fulfilling the need for greater certainty and

protection for teachers. The Rouse and Senate conferees accepted

these guidelines as part of their understanding of fair use.

The problem of off-the-air taping for nonprofit use was

left unresolved. The House Report states that the doctrine of

fair use has some limited application in this area. The Senate

Report, on the other hand, states that, "The committee does not

intend to suggest however, that off-the-air taping for convenience

would under any circumstances be considered 'fair use.'"
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Certain non-educational materials receive attention in

the legislative reports as well. In speaking of independent newsletters which are particularly vulnerable to mass photocopying practices,

both the House and Senate Reports call for a narrower interpretation

of fair use than might be applied to mass-circulation periodicals.

The legislative reports also state the belief that in the

case of calligraphers, a single copy reproduction of an excerpt

from a copyrighted work for a single client "does not represent an

infringement of copyright."

REPRODUCTION BY LIBRARIES AND ARCHIVES - (Section 108)

Section 108 deals with a variety of situations involving

photocopying and other forms of reproductions by libraries and archives.

Subsection (a) provides that "...it is not an infringement of copyright

for a library or archives, or any of its employees acting within the

scope of their employment, to reproduce no more than one copy or

phonorecord of a work, or to distribute such a copy or phonorecord,

under the conditions specified by this section if--

1. the reproduction or distribution is made without

any purpose of direct or indirect commercial

advantage;

2. the collections of the library or archives are (i)

open to the public, or (ii) available not only to

researchers affiliated with the library or archives or

with the institution of which it is a part, but also

to other persons doing research in a specialized field;

and

3. the reproduction or distribution of a work includes a

notice of copyright."

Thus, (a) lays out the basic conditions under which a library or

archives can claim an exemption. But this is only the beginning--for

library activity to be exempt it must also qualify under one of the

conditions laid out in subsections (b) through (f), must not run

afoul of subsection (g), and must involve copying of a work that is

not mentioned in subsection (h).
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(b) Archival preservation--this exemption applies only

to unpublished works in the current collection of a library or archives.

It allows reproduction only in facsimile form, and only for "purposes

of preservation or security or for deposit for research use in another

library or archives."

(c) Replacement--libraries or archives are authorized to

duplicate a published work in facsimile form solely for the purpose

of replacement of a copy or phonorecord that is damaged, deteriorating,

lost or stolen but only if it finds that an unused replacement copy

cannot be obtained at a fair price. The legislative reports offer some

guidance as to what is meant--they indicate that a reasonable investigation

will always require recourse to commonly known trade sources in the

United States, and in the normal situation also to the publisher or

copyright owner or an authorized reproducing service.

(d) Journal articles, small excerpts, etc.--This subsection

applies to "no more than one article or other contribution to a copyrighted collection or periodical issue, or to...a small part of any

other copyrighted work." The only conditions for supplying a reproduction

are that "the copy becomes the property of the user;" there is no

reason to suppose that it "would be used for any purposes other than

private study, scholarship, or research;" and the library or archives

must display prominently, at the place were orders are accepted, a

warning of copyright. The institution must also include a warning to

be prescribed by a Copyright Office regulation on its order form.

(e) Entire works or substantial parts--With one addition,

the conditions applicable under subsection (d) apply under subsection

(e) to "the entire work," or "a substantial part of it." The added

condition is that "the library or archives has first determined,

on the basis of a reasonable investigation, that a copy or phonorecord

of a copyrighted work cannot be obtained at a fair price."

(f) General exemptions--this subsection contains four

clauses aimed at precluding certain interpretations of section 108.

(1) The first clause makes clear that no liability

attaches to a library or its staff for "unsupervised

use of reproducing equipment located on its premises,"

as long as a copyright warning is posted on the

machine.
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(2) Conversely, the second clause provides that the

individual user of the reproducing equipment

is not insulated from liability if the reproduction

exceeds fair use, and the same is true if the

library is asked to make the copy for the individual.

(3) The third clause, which was added to the section

during the floor debates in the Senate in September,

1974, reflects the controversy over the videotape

archive of news programs at Vanderbilt University.

It states that nothing in section 108 "shall be

construed to limit the reproduction and distribution

of a limited number of copies and excerpts by

a library or archives of an audiovisual news

program...."

The intent is to permit libraries and archives

to make off-the-air videotape recordings of

daily network newscasts for limited distribution

to scholars and researchers. The House Report

notes that it is an adjunct to the American Television

and Radio Archive established in Section 113 of the

Transitional and Supplementary Provisions.

The House Report notes that this section does

not apply to documentaries, magazine format or

other public affairs broadcasts dealing with

subjects of general interest to the viewing public.

The report also states that this material is to be

distributed only by lending. Performance, copying,

or sale, whether or not for profit, by the recipient

of a copy of a television broadcast taped off the

air, is forbidden.

(4) The fourth clause is important. It declares

that nothing in section 108 "in any way affects the

right of fair use as provided by section 107."

It also provides that the right of reproduction

granted by section 108 does not override any

contractual arrangements assumed by a library

or archives when it obtained the work for its

collections.
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(g) Multiple and systematic copying--This subsection was

one of the most controversial. It states that the rights of reproduction and distribution under section 108 extend to the "isolated

and unrelated" reproduction or distribution of a single copy or

phonorecord of the same material on separate occasions; they do not

cover related or concerted multiple copying, even when done over a

period of time for different users.

The exact language is: "that the rights under section

108 do not extend to cases where the library or archives, or its

employees:

(1) is aware or has substantial reason to believe that

it is engaging in the related or concerted reproduction

or distribution of multiple copies or phonorecords

of the same material, whether made on one occasion or

over a period of time, and whether intended for aggregate

use by one or more individuals or for separate use

by the individual members of a group; or

(2) engages in the systematic reproduction or distribution

of single or multiple copies or phonorecords of materials

described in subsection (d) [an article or contribution

to a periodical or copyrighted collection or a small

part of any other copyrighted work]: PROVIDED, That

nothing in this clause prevents a library or archives

from participating in interlibrary arrangements that do

not have, as their purpose or effect, that the library

or archives receiving such copies or phonorecords for

distribution does so in such aggregate quantities as to

substitute for a subscription to or purchase of such

work."

The National Commission on New Technological Uses of Copyrighted

Works (CONTU) developed, with the assistance of representatives

of library organizations and authors and publishers, a set of guidelines on interlibrary arrangements which were incorporated into the

Conference Report. However, in the report the conferees stated:

"...the guidelines are not intended as, and cannot be

considered, explicit rules or directions governing

any and all cases, now or in the future. It is recognized

that their purpose is to provide guidance in the most

commonly-encountered interlibrary photocopying situations,

that they are not intended to be limiting or determinative

in themselves or with respect to other situations, and

that they deal with an evolving situation that will

undoubtedly require their continuous reevaluation and

adjustment."
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Part of this reevaluation process will be the requirement

in section 108(i) that the Register of Copyrights, five years after

the effective date of the new Act, and at five-year intervals thereafter, issue reports on the extent to which section 108 has achieved

the intended balancing of the rights of the creators and the needs

of users. The guidelines themselves call for a five-year review

also.

[NOTE: the CONTU guidelines are limited to one of the

most frequent interlibrary loan practices--the making of copies of

articles from periodicals whose issue dates are less than five years

old. The question of guidelines or interpretations of making copies

from articles more than five years old is left to future interpretation.

Note, too, that the focus of the guidelines is on the requesting

library rather than on the one which fills the orders.]

(h) Material not covered--This subsection narrows the

scope of subsections (d) and (e) to exclude musical works, pictorial,

graphic, and sculptural works, and audiovisual works (other than

television news programs) from the reproduction privileges set

out therein.

The exclusions under (h) do not apply to archival reproduction

under (b); or to replacement of damaged or lost copies under (c); or to

"pictorial or graphic works published as illustrations, diagrams, or

similar adjuncts to works of which copies are reproduced or distributed

in accordance with subsections (d) and (e)."

It is important to remember that the doctrine of fair

use remains fully applicable under section 107 to musical works,

pictorial, graphic and sculptural works and audiovisual works.

[NOTE: the Conference Report deals with the interpretation of

"indirect commercial advantage" as used in section 108. With regard

to libraries which are connected with industrial, profit-making, or

proprietary institutions it says, "[a]s long as the library or archives

meets the criteria in section 108(a) and the other requirements of

the section, including the prohibitions against multiple and systematic

copying in subsection (g), the conferees consider that isolated,

spontaneous making of single photocopies by a library or archives in

a for-profit organization without any commercial motivation, or

participation by such a library in interlibrary arrangements, would

come within the scope of section 108."]
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EXEMPTIONS OF CERTAIN PERFORMANCES AND DISPLAYS-(Section 110)

The general rights of public performance and display

which are enunciated in clauses (4) and (5) of section 106 (see

Chapter 7) are made subject to nine specific limitations in section

110. This section exempts the following types of public performances

from copyright liability under specified conditions:

(1) face-to-face teaching activities;

(2) instructional broadcasting (broadcasts that are

essentially an adjunct to actual classwork of educational

institutions as opposed to public broadcasts which are

of a cultural or educational nature and directed to the

public at large);

(3) religious services;

(4) live performances without commercial advantage to

anyone;

(5) mere reception of broadcasts in a public place;

(6) annual agricultural and horticultural fairs;

(7) public performance in connection with sale of records

or sheet music;

(8) noncommercial broadcasts to the blind or deaf;

(9) nonprofit performances of dramatic works transmitted

to the blind by radio subcarrier.

As the legislative reports note, clauses (1) through (4) deal with

performances and displays that were generally exempt under the

"for profit" limitation or other provisions of the 1909 law.

(1) Face-to face teaching activities--This sets out the

conditions under which performances or displays, in the course

of instructional activities other than broadcasting, are to be

exempt from copyright control. This clause covers all types of

works.
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To be exempt, the performance or display must be by a

pupil or an instructor which would generally mean a teacher but it

is intended to be broad enough to cover, for example, a guest

lecturer. Performance by actors, singers or musicians brought

in from outside would not be exempt.

"Face-to-face" was inserted to exclude broadcasting or

other transmissions, whether radio or television, or open or closed

circuit, from an outside location into a classroom. The exemption

does, however, extend to the use of devices for amplifying or reproducing

sound and for projecting visual images, as long as instructors and

students are in the same building or general area.

"Teaching activities" is intended to mean systematic

instruction; it would not include performances or displays that are

given for the recreation or entertainment of any part of the audience.

This is true even though the work performed or displayed has great

cultural or intellectual appeal.

The phrase "classroom or similar place" limits the exemption

to places devoted to instruction. The legislative reports indicate

that such a place might be a studio, workshop, gymnasium, or library

as long as it actually is used as a classroom for systematic instructional

activities. Performances in an auditorium for a school assembly,

a graduation exercise, etc. would be outside the scope of this

exemption because the audience is not confined to members of a

specific class, although they might be exempted under other provisions

of section 110.

(2) Instructional broadcasting--This covers broadcasting

which is an adjunct to the actual classwork of educational institutions;

it exempts "the performance of a nondramatic literary or musical work

or display of a work by or in the course of transmission" if three

conditions are met. The first is that the performance or display

must be a "regular part of the systematic instructional activities of

a governmental body or a nonprofit educational institution." The

second is that "the performance or display is directly related and of

material assistance to the teaching content of the transmission."

The third is that the transmission must be made "primarily" for:

"(i) reception in classrooms or similar places normally devoted to

instruction; or (ii) reception by persons to whom the transmission is

directed because of their disabilities or other special circumstances

prevent their attendance in classrooms or similar places normally

devoted to instruction; or (iii) reception by officers or employees

of governmental bodies as part of their official duties or employment."
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Only performances of nondramatic literary or musical

works would be exempt. The performance of a dramatico-musical work

such as an opera or musical comedy, or a motion picture or other

audiovisual work could occur lawfully only if the copyright owner's

permission had been obtained.

With respect to exhibitions, the exemption would

apply to any type of work which the right "to display...publicly"

under section 106(5) applies (see Chapter 7).

The reports indicate that "systematic instructional

activities" is intended as the general equivalent of "curriculums"

but that it could be broader in certain cases.

The term "educational institution" was used because

it is broad enough to cover a wide range of establishments engaged

in teaching activities. It is not supposed to cover, however,

"foundations," "associations," etc. who are not primarily and

directly engaged in instruction.

110(2) ties in with section 112(b) (see below) which

represents a response to instructional broadcasters' requests for

special recording privileges. It permits a nonprofit organization

that is entitled to transmit a performance or display of a work

under section 110(2) to make not more than 30 copies or phonorecords

and to use the "ephemeral recordings" for transmitting purposes

for not more than seven years after the initial transmission.

Thereafter, only one copy or phonorecord may be preserved exclusively

for archival purposes.

(3) Religious services--This covers performances of a

nondramatic literary or musical work and also performances of

dramatico-musical works "of a religious nature" and displays of all

kinds. This exemption only applies to performances and displays "in

the course of services at a place of worship or other religious

assembly." This clause does not cover the sequential showing of

motion pictures and other audiovisual works.

The House Report indicates that oratorios, cantatas,

and musical settings of the mass are covered by the exemption, but

that secular operas, musical plays, motion pictures and the like,

even if they have an underlying religious or philosophical theme and

take place in the course of a religious service, are not.
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This exemption would not extend to religious broadcasts

or other transmissions to the public at large.

(4) Certain other nonprofit performances--This clause

provides that the noncommercial performance of a nondramatic literary

or musical work other than in an transmission to the public is

generally exempt from copyright liability if no compensation is paid

to its performers, promoters or organizers. If, however, proceeds

are derived through a direct or indirect admission charge for exclusively

educational, religious, or charitable purposes, then the copyright

owner is given a chance to serve a notice of objection concerning the

performance.

To prevent the performance, the notice must be in

writing and be signed by the copyright owner or his duly authorized

agent, must be served on the person responsible for the performance

at least seven days prior to the performance, and must state the reason

for the objection. Also, the notice must comply in form, content and

manner of service with regulations the Copyright Office is to promulgate.

(5) Mere reception in public--This clause applies to all types

of works. Its basic purpose is to exempt from liability anyone who merely

turns on, in a public place, an ordinary radio or television of a kind

commonly sold to the public for private use. This clause is not supposed

to have anything to do with cable systems; moreover, the exemption would be

denied in any case where the audience is charged directly to see or hear

the transmission.

[NOTE: with respect to Twentieth Century Music Corp 

v. Aiken, 422 U.S. 151 (1975), the House Report states that this fact

situation represents the outer limit of the exemption and believes

that the line should be drawn at this point. (Aiken had a small

business and used a home receiver with four ordinary loudspeakers

grouped within a relatively narrow circumference from the set. A

proprietor of a small commercial establishment who brings standard

home equipment to the premises and plays it for the enjoyment of the

customer would fall within the exemption. If the equipment were of a

commercial nature, then liability would be imposed. In making this

determination, the House Report indicates that factors to consider

are the size, physical arrangement and noise level of the areas within

the establishment where the transmissions are made audible or visible,

and the extent to which the receiving apparatus is altered or augmented

for the purpose of improving aural or visual quality of the performance

for the public.

(6) Agricultural Fairs--This clause exempts "performance

of a nondramatic musical work by a governmental body or a nonprofit

agricultural or horticultural organization, in the course of an

annual agricultural or horticultural fair or exhibition conducted by

such body or organization."

This clause makes it clear that only the governmental

body or nonprofit organization sponsoring the fair is covered.

Concessionaires have no exemption under this clause.
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(7) Retail sale of phonorecords--This provision allows

the performance of a nondramatic musical work or of a sound recording

by a vending establishment open to the public at large without

any direct or indirect admission charge, where the sole purpose of

the performance is to promote the retail sale of copies or phonorecords of the work.

(8) and (9) Transmissions for the blind and other handicapped

persons--Subsection (8) provides an exemption for the performance of a

nondramatic literary work. To qualify, a broadcast must be specifically

designed for, and directed to, blind or other sight or hearing impaired

persons; must be made without any purpose of direct or indirect commercial

advantage; and be broadcast through the facilities of either:

a) a governmental body;

b) a noncommercial educational broadcast station;

c) a radio subcarrier authorization; or

d) a cable system.

Clause (9) exempts nonprofit performances of dramatic works transmitted

to audiences of the blind by radio subcarrier authorization, but

only for a single performance of a dramatic work published at least

ten years earlier.

EPHEMERAL RECORDINGS - (Section 112)

Ephemeral recordings are "copies or phonorecords of a

work made for purposes of later transmission by a broadcasting

organization legally entitled to transmit the work." Thus, an

ephemeral recording is a tape or phonorecord of a work made by a

broadcaster who either by license of the copyright owner or exemption

in the statute has the right to perform a work, but not necessarily

the right to make copies. Without an ephemeral recording right, the

broadcaster who may have secured a license to perform a copyrighted

work on radio or television would not be able to tape the performance

of the work.

The new copyright law distinguishes between a broadcaster

who acquires a license to transmit a work and an instructional

broadcaster who is exempt under section 110(2).
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Under 112(a) a licensed broadcaster is allowed to make one

of a program provided that the copy is retained and used only by

tho transmitter who made it and used only within that transmitter's

normal transmission area. Additionally, the broadcaster is required

to either destroy the copy within six months or use it exclusively

for archival purposes. Motion pictures and other audiovisual works

are not included in this exemption.

112(b) covers recordings for instructional transmissions.

It permits a nonprofit organization that is free to transmit a performance or display under 110(2) or 114(a) to make not more than 30

copies or phonorecords and to use the ephemeral recordings for

transmitting purposes for not more than seven years after the initial

transmission.

(NOTE: there is no reproduction privilege for motion

pictures or other audiovisual works. 110(2) covers only nondramatic

literary and musical works and displays of all types of works.]

It is important to realize that ephemeral recordings

made by instructional broadcasters are in fact audiovisual works that

often compete for the same market. As the reports indicate, it is

unfair to allow instructional broadcasters to reproduce multiple

copies of films and tapes, and to exchange them with other broadcasters

without paying any copyright royalties; this was considered to

injure the market of producers of audiovisual material who pay

substantial fees to authors for the same uses. This was the main

reason why limitations were placed on this exemption.

112(c) covers religious broadcasts. This clause states

that "it is not an infringement for a government or nonprofit organization

to make no more than one copy or phonorecord for each transmitting

organization of a particular transmission program embodying a

performance of a nondramatic musical work of a religious nature or a

sound recording of such musical work" if: (1) there is no charge; (2)

there is no use other than a single transmission by a transmitting

organization entitled to transmit to the public under a license or

transfer of copyright (in plain English--a broadcasting station); and

3) one copy only is kept for archival purposes. All other copies are

to be destroyed within one year from the date the transmission

was first transmitted to the public.

The case made by the religious program producers before

Congress was that they are producing a nonprofit broadcast and

are merely using the convenience of tape or disc rather than long

lines because it is cheaper to do so in this manner.
- 8:15 -

112(d) grants an ephemeral recording right to transmissions

to handicapped audiences. This subsection ties in with 110(8).

112(e) covers the copyright status of ephemeral recordings.

It provides that ephemeral recordings are not to be copyrightable as

derivative works except with the consent of the owners of the copyrighted material employed in them.

LIMITATIONS ON EXCLUSIVE RIGHTS IN SOUND RECORDINGS (Section 114(b))

An exception to the exclusive rights in sound recordings

granted in section 106 is that permission is not needed to use

sound recordings in educational television and radio programs distributed or transmitted by or through public broadcasting entities as

long as phonorecords of such programs are not commercially distributed

by or through such entities to the public.

The rights in sound recordings are also limited by certain

portions of sections 108 and 112 and of course by the doctrine of

fair use, section 107.
- 9:1 -

CHAPTER NINE

THE COMPULSORY LICENSES AND THE COPYRIGHT ROYALTY TRIBUNAL

[Sections 111, 115, 116, 118 and Chapter 8]

SECONDARY TRANSMISSIONS (Section 111)

Section 111 covers the complex and economically important

problem of "secondary transmissions." For the most part this section

is directed at the operation of cable systems and the terms and

conditions of their liability for the retransmissions of copyrighted

works. It does, however, consider other forms of secondary transmission

including apartment house and hotel systems, common carriers, and

secondary transmissions of primary transmissions to controlled

groups. Subsection (f) contains the definitions of the operative

terms--e.g., "primary transmitter" and "secondary transmitter."

Cable television systems are commercial subscription

services which pick up broadcasts of programs originated by others

and retransmit them to paying subscribers. A typical system consists

of three sections: the head end section, which is the point where

the signal is introduced into the system; the trunk line section,

which brings the signal from the head end to the local community;

and the distribution system, which carries the signal from the

trunk line to the various subscribers' homes. In an area where

off-the-air reception is poor (e.g., where there is hilly terrain)

the cable system may use microwave to bring TV signals to the head

end. A growing number of cable systems also originate programs, such

as movies and sports, and charge additional fees for this service

(pay cable).

Subsection (c) establishes a compulsory license for cable

systems. Generally it allows the retransmission of those over-the-air

broadcast signals that a cable system is authorized to carry pursuant

to the rules and regulations of the FCC. This license, however, is

conditioned on compliance with the reporting and filing provisions of

the law, payment of the royalties due, etc. The rationale for this

provision is that Congress believed that cable systems are commercial

enterprises whose basic retransmission operations are based on the

carriage of copyrighted program material. Congress believed that

royalties should be paid by cable operators to the creators of such

programs; but Congress recognized that it would be too burdensome and

impractical to require every cable system to negotiate with every

copyright owner.
- 9:2 -

,

Basic Principles of the Compulsory License:

1. A cable system's retransmission is clearly a public

"performance" of the copyrighted work.

2. As long as a cable operator is authorized by his

FCC license to carry a particular signal, he is entitled to rely on

the "compulsory license" with respect to the copyrighted material

carried by the signal.

3. The new law makes distinctions between cable retransmission

of local and distant signals and between cable carriage of network

and non-network programming. Congress believed that the retransmission

of local signals, essentially those already available over-the-air in

the cable system's community, did not economically injure copyright

owners since they were compensated for use of their programs in

the local markets under their broadcast licenses. Congress also

concluded that retransmission of network programming, whether local or

distant, did not injure the copyright owner. The owner would be

adequately compensated under its contract with the network. Payment

in this situation is generally based on reaching all markets served

by the network by any means. Congress did, however, find that the

retransmission of distant non-network programming would damage

the copyright owner. Where a cable system brings a distant, non-network

signal into its community, the copyright owner's ability to subsequently license the use of its program in that community would

be impaired. In effect, the copyright owner would find itself dealing

in used goods. Thus, all signals are under the compulsory license

but generally the statutory fee is based on the amount of carriage

of distant, non-network programming.

4. Commercial substitution and program modification

is prohibited. The law provides that if a cable system intentionally

alters the content of the retransmitted program, or changes, deletes,

or adds to commercial advertising or station announcements transmitted by the originating station, it loses the benefit of the

compulsory license. The law permits suit to be brought by the

originating broadcast station or any broadcast station within whose

local service area the cable retransmission is made. In such a case

the court may deprive the cable system of the compulsory license for

a period of up to 30 days. The effect of this is to preclude a cable

operator from deciding that the economic benefits of commercial

substitution or the like are significant enough to forego the compulsory

license and negotiate directly with the copyright owner.
- 9:3 -

5. There are provisions governing the importation of

foreign television signals. FCC rules permit certain border cable

systems to retransmit certain Mexican and Canadian signals. The new

law extends the compulsory license to the retransmission of Mexican

and Canadian signals by cable systems located within limited zones in

the U.S. In the case of Canadian signals the zone is defined geographically--it applies to areas located within 150 miles from the

U.S.-Canadian border, or south from the border to the 42nd parallel

of latitude, whichever distance is greater. Included within the

compulsory license area: Detroit, Pittsburgh, Cleveland. Outside:

New York, Philadelphia, Chicago and San Francisco.

The Mexican situation was harder to deal with because

of the effect of the retransmission of Mexican signals on indigenous

U.S. Spanish-language programming. With regard to Mexico, the

zone is defined by technology. The compulsory license applies only

in such areas where the signals may be received by a U.S. cable

system by means of direct interception of a free space radio wave.

Thus, the compulsory license is generally applicable only to systems

which receive the program directly off-the-air and not to those

systems which use microwave or other devices going beyond a mere

receiving antenna.

Additionally, there is a grandfather clause. The

new law permits cable systems authorized to carry Canadian or Mexican

signals under FCC rules in effect on April 15, 1976 to continue

to carry those signals under the compulsory license.

Cable systems operation outside the specified zones,

and not grandfathered in, are not entitled to the compulsory license

and must negotiate for the retransmission of the signals with the

copyright owners.

6. Section 111 does not normally cover situations where

someone tapes a program off-the-air and the program is later retransmitted from the tape. There is a complicated exception involving

cable systems outside the continental United States, some of which

are allowed to use tape because they cannot pick signals out of the

air. See 111(e).
- 9:4 -

Exemptions 

Subsection (a) contains four exemptions to the compulsory

license. These are:

(1) Secondary transmissions consisting "entirely

of the relaying, by the management of a hotel,

apartment house, or similar establishment" of

a transmission to the private rooms of guests

or residents as long as no direct charges were

made to see or hear it. Private rooms limit it to

living quarters; it would not include dining

rooms, meeting halls, theatres, ballrooms, or

similar places that are outside of a normal circle

of a family and its social acquaintances.

(2) Secondary transmissions of instructional broadcasts

which are within the scope of section 110(2)

[See Chapter Eight].

(3) Secondary transmissions of a passive carrier--i.e.,

one which "has no direct or indirect control

over the content or selection of the primary

transmission or over the particular recipients of

the secondary transmission."

(4) The operations of non-profit "translators" and

"boosters" which do nothing more than amplify

broadcast signals and retransmit them to everyone

in an area for free reception if there is "no

purpose of direct or indirect commercial advantage"

and if there is no charge to the recipients

"other than assessments necessary to defray the

actual and reasonable costs" of maintenance and

operation. This exemption does not apply to a

cable television system.

Outside the scope of the compulsory license (must be licensed from 

the copyright owner(s) of the program(s)) - Secondary transmissions of

primary transmission to a controlled group.

Subsection (b) makes it clear that the secondary transmission

to the public of a primary transmission embodying a performance or

display is actionable as an act of infringement if the primary

transmission is not made for reception by the public at large but

is controlled and limited to reception by particular members of

the public. Examples include MUZAK, closed circuit broadcasts to

theaters, subscription television, or pay cable.
- 9:5 -

Filing Requirements: Notices, Statements of Account and the Royalty 

Fees 

111(d)(1) required all cable systems in operation on

April 17, 1977, to file by April 18, 1977, an initial notice giving

certain identifying information and listing all signals that it

regularly carries. Cable systems that begin operations after

April 18, 1977, must file such a notice 30 days prior to the commencement

of operation. All cable systems are required to file supplemental

notices within 30 days of any change in the information recorded.

The Copyright Office has adopted a regulation implementing

this notification requirement [37 C.F.R. Section 201.11. Copies are

available from the Copyright Office, request ML-142.]

This regulation requests that the notice be identified as

such by prominently captioning the document as "An Initial Notice of

Identity and Signal Carriage Complement." The notice should include:

the identity and address of the person who, or entity which, owns or

operates the system or has power to exercise primary control over it.

The regulation suggests that the legal name be given with any fictitious

or assumed name adopted for the purpose of conducting business. It

also asks for the name and location of the primary transmitter or

primary transmitters whose signals are regularly carried and suggests

the station's call sign, accompanied by a brief statement of the type

of signal carried (TV, "FM" etc.) be given. The location the Copyright

Office would like is the name of the community to which the transmitter

is licensed by the FCC. The Office in its regulation suggests that

the notices be dated and that they contain the individual signature

of the person identified as the owner, etc. or his authorized agent.

The Initial Notices and Notices of Change will be placed in

"the appropriate public files" of the Copyright Office. For a fee of

$3 the Copyright Office will furnish a certified receipt.

Section 111(d)(2) requires all cable televisions to file

semiannual statements of account. These statements must include a

royalty fee for the six-month period covered; must list all signals

carried during that period; and must provide information on the

number of channels, the number of subscribers and gross receipts

for basic service. Each statement must also be supplemented by

a special statement of account covering distant non-network programming

carried pursuant to FCC rules allowing for the addition or substitution

of signals. Also, the Register is empowered to require, by regulation,

the filing of "other data."
- 9:6 -

Section 111(d)(3) provides that the fees are to go to the

Register, who, after deducting the reasonable costs incurred by

the Office, shall deposit them in the Treasury. The Treasury is

instructed to put the money into interest bearing U.S. securities.

Section 111(d)(4) lists the copyright owners entitled

to royalty fees. They are: (1) copyright owners whose works were

included.. .by a cable system of a distant non-network television

program; (2) any copyright owner whose work is included in a secondary

transmission identified in a special statement of account; and (3)

copyright owners whose works were included in distant non-network

programming consisting exclusively of aural signals--i.e., radio.

No royalties may be claimed or distributed for "local"

or "network" programs.

Every year during the month of July every person claiming

to be entitled to royalties must file with the Copyright Royalty

Tribunal (see below). After the first day of August of each year

the Tribunal shall determine whether a controversy exists. If

no controversy exists, the Tribunal, after deducting its reasonable

administrative costs, shall distribute the fees to the owners or

their agents. If a controversy exists, it must conduct a proceeding

in accordance with chapter 8 of the 1976 Act.

Summary

In order to be covered by the compulsory license provided

by Section 111, a cable system must:

- retransmit only those signals permitted under

FCC rules

- comply with the filing and reporting requirements

of the Copyright Office

- pay the royalties established by the formula in the

law

- avoid program modification or commercial substitution

- restrict its retransmissions to programs that

originate from FCC-licensed stations in the U.S.

- (in the case of a Canadian signal) be located in

the appropriate zone; or

- (in the case of a Mexican signal) limit itself

to the appropriate technology.
- 9:7 -

COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING PHONORECORDS EMBODYING

NONDRAMATIC MUSICAL COMPOSITIONS (Section 115)

Sections 1(e) and 101(e) of the 1909 Act grant the copyright owner of a musical composition the exclusive right to make

or license the first recording. After that anyone else may make a

"similar use" of the work. The compulsory license provision of

the old law required that the compulsory licensee notify the copyright

owner of his intent, send a copy of the notice of intention to

use to the Copyright Office for recordation, and pay the statutory

royalties at the appropriate time.

A major issue in the revision effort was whether to retain

this compulsory license. The Copyright Office originally suggested

that the compulsory license provision be eliminated. This proposal

was met with fierce opposition by record producers both small and

large. Even copyright proprietors favored its retention in some

form.

In 1967 the House Judiciary Committee noted in its report

that it favored retention of the principle; it did, however, also

state "that the present system is unfair and unnecessarily burdensome on copyright owners" and observed "that the present statutory

rate is too low."

The compulsory license for making phonorecords of copyrighted nondramatic musical compositions is retained in section

115 of the new law; there are, however, substantial changes in the

system.

Availability and Scope of the Compulsory License (Section 115(a))

This subsection makes the compulsory license available

as soon as the copyright owner of the music distributes phonorecords

to the public in the United States. The distribution must be authorized

by the copyright owner of the music.

The compulsory license is available only if the purpose in

making phonorecords is to distribute them to the public for private

use. (Background music systems need the express consent of the

copyright owner; they may not rely on this section.)

The compulsory license provided by section 115 is not

available to an unauthorized duplicator. Moreover, the iipterpretation

of Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th Cir.), cert.

denied, 409 U.S. 847 (1972) and its progeny--Marks, Jondora and

Fame--is incorporated into the legislative reports. However, it
- 9:8 -

is possible to duplicate the sounds fixed and owned by another

as long as the owner of those sounds authorizes the duplication.

If the owner of the sounds authorizes the use, section 115 is

applicable.

Subsection (a) recognizes the practical need for a limited

privilege to make new arrangements of the music being used under

a compulsory license. It does not, however, allow the music to

be "perverted, distorted, or travestied." [House Report 94-1476.]

A new arrangement may be made as long as it doesn't change the

basic melody or fundamental character of the work. There can

be no copyright in the new arrangement unless the copyright owner

of the music specifically authorizes the new arrangement.

Notice of Intention to Obtain a Compulsory License (Section 115(b))

The user must serve a notice of his or her intent on

the copyright owner before or within 30 days after the phonorecords

have been made; however, the notice must be served before any phonorecords are distributed. If the copyright owner is not identified in

the registration or other records of the Copyright Office, the notice

of intention should be filed with the Copyright Office.

The notice must comply with the form, content and manner

of service required by the regulations of the Copyright Office.

Failure to file the required notice of intention rules

out the compulsory license; in the absence of a negotiated license, the

user is subject to the remedies applicable to other types of infringement.

Royalty Payable under the Compulsory License (Section 115(c))

A "notice of use," Form U, is not required under the new

law. Instead, to receive royalties, the copyright owner must be

"identified in the registration or other public records of the

Copyright Office."

Proper identification is an important condition of recovery--

the owner is entitled to royalties for phonorecords made and distributed

after being so identified, but is not entitled to recover for any

phonorecords previously made and distributed.

Royalty payments are to be made on or before the 20th

day of each month. Each payment must be under oath and must comply

with the requirements of the Copyright Office regulation on this

subject.
- 9:9 -

The Register of Copyrights, by regulation, is to establish

criteria for the detailed annual statements of account which must be

certified by a Certified Public Accountant. A regulation will prescribe the form, content, manner of certification with respect to the

number of records made, and the number of records distributed.

The royalty rate is 2 3/4 cents or 1/2 cent per minute or

fraction of playing time, whichever is larger, for each work embodied

in the phonorecord.

Under the old law, the royalty payment was for each phonorecord manufactured; under the new law, it's for each phonorecord

"made and distributed." Congress believed it was unfair to require

payment of license fees on records which merely go into inventory,

which may later be destroyed and from which the record producer gains

no economic benefit. A phonorecord is considered "distributed" if the

compulsory licensee has voluntarily and permanently parted with possession.

The House Report notes that "made" is meant to be broader

than "manufactured;" that it is meant to "include within its scope

every possible manufacturing or other process capable of reproducing

a sound recording in phonorecords."

The legislative reports make it clear that "even if a presser,

manufacturer, or other maker had no role in the distribution process,

that person would be jointly and severally liable where the provisions

of section 115 were not complied with."

The Register of Copyrights is to issue a regulation prescribing

a point in time when, for accounting purposes, under section 115, a phonorecord will be considered "permanently distributed," and situations in

which a compulsory licensee is barred from maintaining reserves (e.g.,

situations in which the compulsory licensee has frequently failed to

make payments in the past).

Subsection (4) allows the copyright owner to serve written

notice on a defaulting licensee; the compulsory license is terminated

if the default is not remedied in 30 days from the date of the notice.

Termination makes the making or the distribution, or both, of all

phonorecords for which the royalty has not been paid actionable as

acts of infringement.
- 9:10 -

PUBLIC PERFORMANCE BY MEANS OF COIN-OPERATED PHONORECORD PLAYERS

(Section 116)

Section 1(e) of the 1909 law contains the "jukebox exemption."

The position of the Copyright Office has been that this exemption is an

historical anomaly. The 1961 Report of the Register notes that it was

placed in the law in 1909 "at the last minute with virtually no discussion." The Report also observes that in 1909 coin-operated music

machines were apparently a novelty of little economic consequence.

The Copyright Office recommended that this exemption be repealed, or

at least be replaced by a provision requiring jukebox operators to

pay reasonable license fees for the public performance of music for

profit.

Section 116(a)(2) provides that the operator of a coinoperated phonorecord player may obtain a compulsory license for the

public performance of nondramatic musical works on that machine. A

"coin-operated phonorecord player" is defined as one which is "activated

by the insertion of coins, currency, tokens, or other monetary units

or their equivalent." To come within the compulsory license provision

the following must be present:

1. The establishment where the machine is located

must make "no direct or indirect charge for

admission;"

2. The phonorecord player must be "accompanied by

a list of titles of all musical works available

for performance on it," and the list must be

affixed to the machine itself or "posted in the

establishment in a prominent position where it

can readily be examined by the public;" and

3. The machine must provide "a choice to be made

by the patrons of the establishment in which

it is located."

To obtain the compulsory license, the jukebox operator must

file an application with the Copyright Office, send the royalty payment,

and then affix the certificate to the jukebox in a way that it is readily

visible to the public. The application must be filed within one month

after the machine is placed in use and during the month of January in

each succeeding year. The royalty payment for a full year is $8.00,

or if filed for the first time after July 1 of any year the fee is

$4.00.
- 9:11 -

Within twenty days after the Copyright Office receives an

application and fee, the certificate must be issued. The certificate

must be affixed to the machine on or before March 1 or within ten days

after the date of issue.

Under 116(b)(2) the failure to file, affix the certificate

or pay the royalty would make any public performance on that machine

an infringement subject to all the remedies provided by Chapter Five

of the law.

Section 116(c)(1) requires the Register, after deducting

reasonable administrative costs, to deposit in the Treasury the fees

collected. These fees are to be invested in interest-bearing securities

for later distribution with interest by the Copyright Royalty Tribunal.

The Register has to submit to the Tribunal an annual detailed statement

accounting for all the fees received during the preceding year.

116(c)(2) provides that during each January every person

claiming to be entitled to a portion of the fees collected under

§116 shall file a claim with the Tribunal. The claim must include

an agreement to accept the determination of the Tribunal as final

in any controversy. Judicial review, however, is provided for in

section 810.

After the first of October the Tribunal is to determine

whether a controversy exists. If there is no controversy, it will

distribute the fees after deducting "its reasonable administrative

costs." If it decides that there is a controversy, it must conduct

a hearing to determine the distribution of royalty fees.

116(4) directs the Tribunal to promulgate regulations

whereby the persons who have reason to believe they will be entitled

to file a claim for public performances of their works for a given

year are permitted to have access to phonorecord players (jukeboxes)

to determine their share of the fees. A potential claimant could

not harass an establishment proprietor, but if the claimant were

denied access which is granted by this section, he or she may bring

an action in the U.S. District Court for the District of Columbia

for cancellation of the compulsory license of the jukebox to which

he or she was denied access.
- 9:12 -

Under 116(d) certain actions which would fraudulently

subvert the intent of this section would be subject to a criminal

penalty. The falsification of material facts in the application,

the alteration of the certificate, or knowingly affixing the certificate to a machine other than the one it covers, would subject the

guilty party to a fine of up to $2,500.

[NOTE: it is the operator and not the proprietor of the establishment that section 116 is aimed at. The proprietor is exempt from

liability unless he also is an operator of the machine or unless he

fails or refuses to reveal the identity of the operator. (§116(a)(1))].

NONCOMMERCIAL, i.e., PUBLIC BROADCASTING (Section 118)

Section 118 provides a compulsory license for public broadcasting for the use of published nondramatic musical works and published pictorial, sculptural and graphic works provided certain conditions are met.

Works Not Included 

Materials which are excluded under this compulsory license

are: nondramatic literary works, plays, operas, ballets, motion

pictures and other audiovisual works including television programs.

Subsection (e), however, encourages the parties to conclude

voluntary agreements for the use of nondramatic literary works, and

the Register is to report to Congress on January 3, 1980 on the extent

to which voluntary agreements have been reached. The report is also

to include any problems that have arisen and to make appropriate

legislative recommendations.

Subsection (0 clarifies that section 118 does not apply

to unauthorized dramatizations of nondramatic musical works, to

program productions based on published compilations of pictorial,

graphic or sculptural works, or to the use of audiovisual works,

except as such may be considered "fair uses" within the meaning of

section 107.
- 9:13 -

Voluntary Negotiations 

Although this section sets up a compulsory license, it

strongly encourages voluntary agreements between public broadcasters

and copyright owners. Voluntarily negotiated agreements shall prevail

in every case provided they are filed in the Copyright Office within

30 days of execution in accordance with regulations prescribed by

the Register of Copyrights. [37 C.F.R. Section 201.9; copies available from the Copyright Office request ML-146].

Voluntary agreements become effective upon their being

filed in the Copyright Office. This applies not only to the categories of works included under the compulsory license, but also to

nondramatic literary works which are not. The Regulation provides

that the original instrument of agreement, or a legible photocopy

or other full-size facsimile reproduction accompanied by a certification that the reproduction is a true copy be filed. All

persons identified as parties in the document must sign it or have

an authorized agent sign for them. The document must be complete

on its face; it should be clearly identified as being submitted

under section 118, and it must be accompanied by the appropriate

fee. The date of recordation is the date on which all elements

have been received by the Copyright Office and after recordation,

the document is returned to the sender with a certificate of record.

Components of Compulsory License 

A compulsory license may be obtained for one or more of

the following activities [subsection (d)]:

1. performances or displays of published music

or graphics by a public broadcasting entity

in the course of a noncommercial educational

broadcast transmission;

2. production, reproduction and distribution of

copies or phonorecords of such programs by a

public broadcasting entity; and

3. simultaneous off-air videbtaping and performance

or display of such transmissions by nonprofit

institutions or governmental bodies for faceto-face teaching purposes within the conditions

of 110(1) for a period of seven days from the

transmission.
- 9:14 -

,

There is a provision, however, that broadcasters are not

liable for copies of programs they supplied which are not destroyed

within this period if they inform the receiving institution of this

destruction obligation.

The terms and rates of the compulsory license are to be

established by the Copyright Royalty Tribunal between 120 days and

six months after it publishes a notice of the initiation of proceedings. The notice is supposed to be published "not later than

thirty days after the Copyright Royalty Tribunal has been constituted."

No initial rates have been established by the new law for

public broadcasting licenses; nor does the Tribunal collect and

distribute monies. Rather the Tribunal is to devise a schedule of

rates and terms within 120 days or six months from the date of the

publication of the initial notice. In addition, section 118 does

not indicate when compulsory licensing rates must be paid.

A provision in subsection (b)(3) directs the Tribunal to

establish requirements by which copyright owners may receive reasonable notice of the use of their works under section 118 -- the records

of such use are to be kept by public broadcasting entities.

Definitions 

As used in section 118, "public broadcasting entity" means

a noncommercial educational broadcast station as defined by the FCC.

In addition, any "nonprofit institution or organization" is eligible

if it is engaged in the activities described in section 118(d)(2).

COPYRIGHT ROYALTY TRIBUNAL

[Chapter 8 - Sections 801-810]

The Copyright Royalty Tribunal, an independent body in

the legislative branch of the government, shall consist of five

commissioners to be appointed by the President with the advise and

consent of the Senate. The term of service is seven years; however,

for start-up purposes three commissioners will have seven-year terms

while the other two will beinamed to serve for five years.
- 9:15 -

The Copyright Royalty Tribunal was established for the

purpose of distributing the royalties to those entitled to receive

payment under sections 111 (secondary transmissions by cable systems)

and 116 (performance by means of a jukebox). If disputes arise over

the distribution of these royalties, the Tribunal is to resolve these

disputes. In addition, the Royalty Tribunal is to make determinations

as to reasonable terms and rates of royalty payments as provided in

section 118 (public broadcasting), and to periodically review and

adjust statutory royalty rates for the use of copyrighted materials

pursuant to the four compulsory licenses.

Distribution of Royalties (Section 809)

The Tribunal is charged with distributing the royalties

for cable and jukeboxes. If a controversy is determined to exist,

the Tribunal must publish a notice of commencement of proceedings.

The Tribunal is required to render a final decision in any such

proceeding within one year from the date of publication of the

notice.

The full scope of judicial review allowed by the Administrative Procedure Act is allowed. Section 810 specially provides

that any final decision of the Tribunal under 801(b) is appealable

to the U.S. Court of Appeals within 30 days after publication in the

Federal Register.

Periodic Review (Section 804)

The new law provides for a periodic review of the established royalty rates as follows:

Cable -- section 111: 1980 and each subsequent

fifth year.

Mechanical license for music on phonorecords -

section 115: 1980, 1987 and in each subsequent

10th year.

Jukeboxes -- section 116: 1980 and in each subsequent

10th year.

Public broadcasting -- section 118: rates established

will be reviewed in 1982 and in each subsequent

5th year.
- 10:1 -

CHAPTER TEN

NOTICE OF COPYRIGHT [Sections 401 - 406]

As the Supplementary Report of the Register points out,

one of the principal criticisms of the 1909 Act concerns the provisions

requiring a notice of copyright as a condition of protection. Unintentional

omission of the notice and comparatively trivial errors in its form

and position have caused forfeiture in a number of cases.

Both the 1961 Report of the Register and the 1965 Supplementary 

Report recommended, however, that the notice did serve several

useful and definite purposes. They recognized four principal values

of a copyright notice: (1) placing published material which no one

is interested in protecting in the public domain; (2) showing

whether a work is under copyright; (3) identifying the copyright

owner; and (4) showing the year of publication. Therefore, these

reports recommended that the new law continue to require a notice on

published copies but suggested that there be provisions ameliorating

the effect for inadvertent omissions and errors.

In general, sections 401 through 406 represent an effort

to preserve the values of the notice by inducing its use while

substantially ameliorating the effects of accidental or even

deliberate errors or omissions. Subject to certain safeguards

for innocent infringers, protection would not be lost by the complete

omission of the 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. Error in the name or date in the notice

would not be fatal and could be corrected.

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

401 deals with "copies from which the work can be visually perceived,"

and 402 deals with "phonorecords" of sound recordings. As the

legislative reports note, the notice requirements established by

these parallel provisions apply only when copies or phonorecords of a

work are "publicly distributed." They [the reports] state that 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.
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Both sections 401 and 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," makes

it clear that the notice requirements apply to copies or phonorecords

distributed to the public anywhere in the world, regardless of where

and when the work was first published.

NOTICE ON VISUALLY PERCEPTIBLE COPIES (Section 401)

Subsections (b) and (c) set out the requirements concerning

form and position.

Subsection (b) states the required elements. They are:

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

word "Copyright", or the abbreviation "Copr."

2. the year of first publication of the work

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.

There are two special provisions concerning compilations or

derivative works and certain pictorial, graphic or sculptural works:

In compilations or derivative works incorporating previously

published material the year of first publication of the

compilation or derivative work is sufficient.

In pictorial, graphic, or sculptural works, with accompanying

text matter, if any, the year date may be omitted where

such a work is reproduced in or on greeting cards, postcards,

stationery, jewelry, dolls, toys, or any useful articles.

Subsection (c) simply provides that the notice "shall

be affixed to the copies in such manner and location as to give

reasonable notice of the claim of copyright." This provision follows

the flexible approach of the Universal Copyright Convention.
- 10:3 -

This subsection also provides that the Register of Copyrights is to set forth by regulation a list of examples of "specific

methods of affixation and positions of the notice on various types of

works that will satisfy this requirement." A notice placed or

affixed in accordance with Copyright Office regulations would clearly

meet the requirements but, since the Register's examples 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.

NOTICE ON PHONORECORDS OF SOUND RECORDINGS (Section 402)

Subsections (b) and (c) set out the requirements

concerning form and position.

Subsection (b) requires three elements for the notice.

They are:

1. the symbol (P) (the letter P in a circle)

2. the year of first publication of the sound recording

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.

With regard to the name requirement, the law also provides

for a presumption in favor of the record producer. This subsection

states "if the producer of the sound recording is named on the

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

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

the notice.

Subsection (c) provides that "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."

The legislative reports note three of the reasons for

prescribing use of the symbol "(P)" rather than "ID":

1. Need to avoid confusion between claims to copyright

in the sound recording and in the musical or literary

work embodied in it;

2. Need to distinguish between claims in the sound

recording and in the printed text and art work

appearing on the record label, album cover, liner

notes, etc.
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3. This symbol has 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 U.S. is a

party.

NOTICE FOR PUBLICATIONS INCORPORATING UNITED STATES GOVERNMENT WORKS

(Section 403)

This section requires a special notice for a publication

that incorporates United States Government works. It provides

that, when the copies or phonorecords consist "preponderantly of

one or more works of the United States Government," the notice

identify those parts of the work in which copyright is claimed--

that is, the "new matter" added to the uncopyrightable United States

Government work. A failure to meet this requirement would be treated

as an omission of the notice subject to the provisions of section

405.

NOTICE FOR CONTRIBUTIONS TO COLLECTIVE WORKS (Section 404)

In conjunction with section 201(c), section 404 deals

with a serious problem under the 1909 law: the notice requirements

applicable to contributions published in periodicals and other

collective works. The basic approach of this section is to permit

but not require a separate contribution to contain its own notice

and to make a single notice, covering the collective work as a

whole, sufficient to satisfy the notice requirement for the separate

contributions it contains.

As the legislative reports indicate, the rights in an

individual contribution to a collective work generally would not

be affected by the lack of a separate notice as long as the collective

work as a whole bears a notice. One exception is advertisements

inserted on behalf of persons other than the owner of copyright in

the collective work.

Subsection (b) provides that where a separate contribution

does not bear its own notice and is published in a collective work

with a general notice containing the name of someone other than the

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

published with the wrong name in the notice. This means that this

will be governed by section 406(a) and 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.
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OMISSION OF COPYRIGHT NOTICE (Section 405)

Subsection (a) makes it clear that the notice requirements

of sections 401, 402 and 403 are not absolute and that, unlike

the 1909 law, the outright omission of a copyright notice does not

automatically forfeit protection and place the work into the public

domain. Under this section a work published without a notice will

still be eligible for statutory protection for at least five years,

whether the omission was partial or total, unintentional or deliberate.

Subsection 405(a) provides that the omission of notice 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 previously been

made, or is made within five years after publication

without notice, and a reasonable effort is made

to add notice to copies or phonorecords publicly

distributed in the U.S. after the omission is

discovered.

Thus, if the 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 and if the work is not registered within five years

after copies or phonorecords were published without a notice.

Both the House and Senate Reports state that the phrase

"relatively small number" is intended to be less restrictive than

the phrase "a particular copy or copies" in section 21 of the old

law.

[Note: the basic notice requirements are limited to

cases where a work is published "by authority of the copyright

owner" and 405(a), therefore, refers only to omission "from copies

or phonorecords publicly distributed by authority of the copyright

owner." Example: if the copyright owner authorized publication

only on the express condition that all copies or phonorecords bear a

prescribed notice, the notice provisions would not apply since

the publication itself would not be authorized.]
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Subsection (b) provides that 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 or she was misled by the omission is protected from liability

for actual or statutory damages with respect to "any infringing

acts committed before receiving actual notice" of registration.

This is seen as a major inducement to use of the notice.

Subsection (c) deals with the removal, destruction or

obliteration of the notice without the authorization of the copyright

owner. It provides that this does not affect the copyright protection

in the work.

ERROR WITH RESPECT TO NAME OR DATE IN NOTICE (Section 406)

It was common under the 1909 law for a copyright notice to

be fatally defective because the name or date had been omitted or

wrongly stated. As the legislative reports indicate, this section is

intended to avoid technical forfeitures in these cases, while at the

same time inducing use of the correct name and date in protecting

users who rely on erroneous information.

Wrong name: Under 406(a) the use of the wrong name in

the notice would not affect the validity or ownership

of the copyright. However, unless the error has been

corrected in the records of the Copyright Office, an

innocent infringer misled by the notice would have a

complete defense if he infringed under the apparent

authority of the person named in the notice.

Wrong date: 406(b)

a. Antedated: where the year is earlier than the

year of first publication, any statutory term

measured from the year of first publication will

be computed from the year given in the notice.

This is the established judicial principle which

is codified in this subsection.

This would be applicable to anonymous works,

pseudonymous works and works made for hire--see

302(c). The legislative reports indicate that this

will also be applicable to the presumptive periods

set forth in section 302(e).

b. Postdated: 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 therefore governed by section 405.
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The reports state that notices postdated

by one year are quite common in works published

near the end of the year, and it would be unnecessarily

strict to equate cases of this sort with works

published without a notice.

[Note: under the 1909 law claims are registered in cases

where the year in the notice is postdated by one

year. See 37 CFR 202.2. Where the year in the

notice is postdated by more than one year the

Copyright Office rejects the claim.]

Omission of name and date: Subsection (c) provides that,

if 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 though the notice had been omitted

entirely and section 405 controls.

As the legislative reports point out, there is no requirement

that the elements of the copyright notice "accompany" each other.

The reports state that under this provision a name or date that could

reasonably be read with the other elements may satisfy the notice

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."
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CHAPTER ELEVEN

DEPOSIT AND REGISTRATION [Sections 407-412]

Sections 407-412 mark another departure from the old

law and bring the U.S. closer to international practice. Under the

1909 Act, deposit of copies for the collections of the Library

and for purposes of copyright registration have been treated as

the same thing. The new law's approach is to regard deposit and

registration as separate though related requirements. Deposit

of copies and phonorecords for the Library is generally required

for material published in the United States. Copyright registration,

as such, is not required but the new law has substantial inducements

for registration. Deposit for the Library can be combined with

registration.

DEPOSIT FOR THE LIBRARY OF CONGRESS (Section 407)

The basic requirement of this provision is that within

three months after a work has been published with notice in the

United States, the owner of copyright must deposit two copies or

phonorecords of the work in the Copyright Office. Exceptions to this

requirement will be embodied in regulations promulgated by the

Register which will be aimed at meeting the needs of the Library and

adjusting the deposit obligations to meet special situations.

If the "owner of copyright or of the exclusive right

of publication" does not deposit the copies or phonorecords and the

work is not one of the categories that is exempted, the Register may

demand deposit. Failure to comply would not invalidate the copyright;

however, it would subject the owner to fines.

The legislative reports make it clear that section 407

applies to a foreign work as soon as such a work is first published

in this country.

With respect to works, other than sound recordings, the

basic obligation is to deposit "two complete copies of the best

edition," as defined in section 101. Section 101 makes it clear

that the Library is entitled to receive copies or phonorecords

from the edition it believes best suits its needs regardless of

quantity or quality of other U.S. editions that may also have been

published before the time of deposit.
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For sound recordings, two complete phonorecords of the best

edition and any other visually perceptible material published with

the phonorecords must be deposited. Thus, for example, text or

pictorial matter appearing on record sleeves and album covers would

have to be deposited too. As the legislative reports state, 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.

407(c) is aimed at the special needs of artists whose

works are published in expensive limited editions. Under the present

law, optional deposit of photographs is permitted for various classes

of works but not for fine prints. This subsection requires the

Register to issue regulations under which such works would either

be exempted entirely from mandatory deposit or would be subject

to an appropriate alternative form of deposit.

Subsection (d) provides for demand by the Register.

It states that if, after written demand has been made, the required

copies (or copy) are not deposited within, three months after the

demand is received, the person or persons on whom the demand was made

are liable:

1. to pay a fine of not more than $250 for each

work; and

2. to pay to the Library's specially designated

fund, the total retail price of the copies or

phonorecords demanded, or, if no retail price has

been fixed, the reasonable cost of the Library of

Congress of acquiring them; and

3. if such person willfully or repeatedly refuses

to comply with such a demand, to pay an additional

fine of $2,500.

Subsection (e) ties in with the American Television and

Radio Archives Act, 2 USC 170, which appears as section 113 of the

Transitional and Supplementary Provisions. This subsection was

added to provide a basis for the Librarian of Congress to acquire,

as part of the copyright deposit system, copies or recordings of

non-syndicated radio and television programs without imposing any

hardships on broadcasters. Under this subsection the Library is

authorized to tape programs off the air in all cases and may "demand"

that the Library be supplied with a copy or phonorecord of a particular
- 11:3 -

program. As the House Report notes, this "demand" authority is

extremely limited for: 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 by gift, by loan for

purposes of reproduction, or by sale at cost; and 4. the penalty for

willful failure or refusal to comply is limited to the cost of

reproducing and supplying the copy or phonorecord in question.

[Note: section 705 requires that records be kept of

all deposits. For $2 the Office will provide a receipt of deposit--

section 708(3).]

COPYRICHT REGISTRATION IN GENERAL (Section 408)

Permissive registration. Under 408(a) registration of

a claim to copyright, 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 by depositing copies, phonorecords, or

other materials specified by subsections (b) and (c), together

with an application and fee.

Except where registration is made to preserve a copyright that would otherwise be invalidated because of omission of

the notice, (section 405(a)), registration is not a condition of

copyright protection.

Deposit for purpose of registration. In general, and

subject to various exceptions, the material to be deposited should

be one complete copy or phonorecord of an unpublished work, and

two complete copies of the best edition in the case of a published

work.

For works first published outside the United States,

one complete copy or phonorecord "as so published" would be required.

[Note: the provision in the 1909 law, section 215, which allows

waiver of the registration fee for foreign works if, within six

months of first publication, two copies are deposited instead of

the usual one, has been dropped. This provision was enacted in

1949 to meet the serious postwar problems of transferring funds

from foreign countries to the United States. This waiver-of-fee

option was found to be administratively burdensome and the 1965

Supplementary Report of the Register states that it "appears to

have outlived its usefulness."]
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For a contribution to a collective work, one complete

copy or phonorecord of the best edition of the collective work will

be required.

Subsection (b) also provides that copies or phonorecords

deposited for the Library under 407 may be used to satisfy the

deposit provisions of 408 "if they are accompanied by the prescribed

application and fee, and by any additional identifying material that

the Register may, by regulation, require."

Beginning on January 1, 1978, the effective date of the

new law,...deposit copies or phonorecords must be accompanied by

an application and fee if they are to be used for copyright registration.

If copies or phonorecords are sent separately they will not be held

to await connection with an application and fee. After this date, if

copies or phonorecords are sent without simultaneously submitting an

application and registration fee, the deposit will be used for the

Library of Congress but not for registration.

The Register is authorized 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.

Classification and deposit regulations. Subsection (c)

allows the Register, by regulation, to specify "the administrative

classes into which works are to be placed for purposes of deposit

and registration." The legislative reports state that it is important

that the statutory provisions setting forth the subject matter

of copyright be kept entirely separate from the administrative

classification. Moreover, the law makes it clear that the administrative classification "has no significance with respect to the

subject matter of copyright or the exclusive rights provided by this

title."

The Register is also given latitude in adjusting the

type of materials deposited to the needs of the registration system.

The Register is authorized to issue regulations specifying "the

nature of the copies or phonorecords to be deposited in the various

classes" and for particular classes, to require or permit deposit of

one copy or phonorecord rather than two.

The legislative reports note that 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.
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The Register is also allowed to require or permit the

substitute deposit of material that would better serve the purposes

of identification where copies or phonorecords are bulky, unwieldy,

easily broken, or otherwise impractical to file and retain as

records identifying the work registered. Examples: billboard posters,

toys and dolls, ceramics and glassware, costume jewelry and a wide

range of three dimensional objects.

The Register's authority also extends to rare or extremely

valuable copies which would be burdensome or impossible to deposit.

The legislative reports note that deposit of one copy rather than

two would probably be justifiable in the case of most motion pictures.

The Register also has the authority to allow a single

registration for a "group of related works." The legislative

reports include the following examples: 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.

Under 408(c)(2) the Register is directed 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 12

month period, on the basis of a single deposit, application and fee.

Each of the works as first published must have contained a separate

copyright notice, and the name of the owner must have been the same in

each notice. Deposit 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 is required. The application must

identify each work separately, including the periodical containing

it and its date of first publication.

408(c)(3) provides, under certain conditions, an alternative

to the separate renewal registrations under section 304(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.

The requirements are:

1. the renewal claimant or claimants and the basis

for the claim or claims under 304(a) is the

same for each of the works; and
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2. the works were all copyrighted upon their first

publication, either through separate copyright

notice and registration or by virtue of a general

notice in the periodical issue as a whole; and

3. the renewal application and fee are received

not more than 28 or less than 27 years after the

31st day of December of the calendar year in which

all of the works were first published; and

4. the renewal application identifies each work

separately, including the periodical containing it

and its date of first publication.

Corrections and amplifications: There is no provision in the present

law for correcting or amplifying the information given in a completed

registration. There is such a procedure provided by regulation--see

201.5 of the present Copyright Office Regulations.

Subsection (d) authorizes the Register to establish "formal

procedures for 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 is an error made by

the applicant that the Copyright Office could not have been expected

to note during its examination.

A supplementary registration under subsection (d) 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 would, however, 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 record would not be expunged or cancelled,

rather it would be maintained to insure a complete public record.

APPLICATION FOR COPYRIGRT REGISTRATION (Section 409)

This section provides that the form prescribed by the

Register shall include:

(1) the name and address of the copyright claimant;
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(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.
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The legislative reports indicate that the catchall

phrase at the end of section 409 was included to 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." The reports also note that in the case of works

subject to the manufacturing requirement, the application must also

include information about the manufacture of copies.

REGISTRATION OF CLAIM AND ISSUANCE OF CERTIFICATE (Section 410)

The Register is required to register the claim and issue a

certificate if he or she determines that "the material deposited

constitutes copyrightable subject matter and that the other legal and

formal requirements... have been met."

The Register is required to refuse registration and notify

the applicant if he determines that "the material deposited for

registration 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. 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.

The legislative reports note that the five-year period

is based on a recognition that the longer the lapse of time between

publication and registration the less likely the facts are to be

reliable.

Under 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. What this means is that the

plaintiff should not ordinarily be forced in the first instance

to provide all of the multitude of facts that underline the validity

of copyright unless the defendant, by effectively challenging them,

shifts the burden of proof to the plaintiff.
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Section 410(d) makes the effective date of registration

the day when the 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 items 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.

REGISTRATION AS PREREQUISITE TO INFRINGEMENT SUIT (Section 411)

This section restates the present statutory requirement

that registration must be made before a suit for copyright infringement

is instituted. 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 right in the courts until

he has registered his claim.

The new law also provides that a rejected claimant who

has properly applied for registration may bring an infringement suit

if he serves notice on the Register, thus allowing the Register to

intervene in on the issue of registrability. The Register

has 60 days to enter. If the Register fails to join the action

this will "not deprive the court of jurisdiction to determine that

issue."

Subsection (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 would be infringer has been given

advance notice that copyright is being claimed in the work, an

injunction could be obtained to prevent the unauthorized use of the

material included in the "live" transmission.

REGISTRATION AS PREREQUISITE TO CERTAIN REMEDIES (Section 412)

This section offers an incentive to register; it allows

the owner of a registered work a broader range of remedies. Remedies

available are tied to the date of registration. If an infringement

occurred before registration, the copyright owner would be entitled

to the ordinary remedies of injunction and actual damages. If,

however, infringement occurred after registration, the owner would

be entitled to the extraordinary remedies of attorney's fees and

statutory damages.
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This provision, which would apply to both domestic and

foreign works, is subject to a grace period. If the work is registered

within three months of first publication, there is no loss of rights.

Full remedies could be recovered for any infringement begun during

the three months after publication if registration is made before

that period has ended. The legislative reports indicate that this

exception (the three-month grace period) was needed to take care of

newsworthy or suddenly popular works which may be infringed almost as

soon as they are published, before the owner has had a reasonable

opportunity to register his claim.
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CHAPTER TWELVE

MANUFACTURING REQUIREMENTS AND IMPORTATION

OF COPIES OR PHONORECORDS

[Sections 601-603]

Prior to the Copyright Act of 1891 no protection was

afforded to foreign authors. Thus, the works of English authors

were widely pirated in the United States. WheR a movement was

started for protection for foreign authors one of the conditions

mentioned was that their works must be printed in the United States

to be protected here.

The Act of March 3, 1891 is commonly known as the "International

Copyright Act." It contained a complicated compromise which the

Second Supplementary Report of the Register characterizes as having

"the effect of giving U.S. copyright protection to foreign authors

with one hand and taking it away from many of them with the other."

The Register was referring to the manufacturing clause, which was the

price of support for the printers, book manufacturers and the labor

unions in the printing trades.

The manufacturing clause in the 1909 law had its most

direct impact upon English language books and periodicals by U.S.

authors or by foreign authors who are not covered by the U.C.C.

Books and periodicals of "foreign origin" in a language

other than English are exempted from the manufacturing requirements.

The term "of foreign origin", is limited however, and if the first

edition of a foreign language work is by a U.S. author and is printed

abroad, it is denied U.S. copyright protection. Such a work cannot

even be eligible for "ad interim copyright" -- this is available

only to a book or periodical in the English language.

The 1961 Report of the Register favored elimination of

the manufacturing clause as a condition of copyright protection.

However, as the 1965 Supplementary Report notes, the book manufacturing

industry took a very strong position against complete elimination of

the manufacturing requirements. The Supplementary Report notes

that it was apparent for the sake of the revision program that a

compromise on this issue would be necessary.
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MANUFACTURING REQUIREMENTS - (Section 601)

Under the new act, this section is scheduled to be phased

out completely on July 1, 1982. Until that time, the manufacturing

clause will continue, under a considerably limited scope. The

Register is to report on the effect of this phase-out by July, 1981

so that Congress may reexamine the issue. It would apply only to "a

work consisting preponderantly of nondramatic literary material that

is in the English language and is protected under this title." It

does not cover: (a) dramatic, musical, pictorial or graphic works; (b)

foreign language, bilingual, or multilingual works; (c) material in

the public domain; or (d) works consisting preponderantly of material

that is not subject to the manufacturing requirement.

The legislative reports give the following examples:

1. Where the literary material in a work consists

merely of a foreword or preface, and captions,

headings, or brief descriptions or explanations of

pictorial, graphic or other nonliterary material,

the manufacturing requirement does not apply to the

work in whole or in part. In such a case, the

non-literary material clearly exceeds the literary

material in importance, and the entire work is free

of the manufacturing requirement.

2. Where a work contains pictorial, graphic or other

nonliterary material which merely illustrates a

textual narrative or exposition, the nondramatic

literary material is subject to the manufacturing

requirement regardless of the relative amount of

space occupied by each kind of material. In such a

case the narrative or exposition plainly exceeds in

importance the nonliterary material. However, only

the portions of the work consisting of copyrighted

nondramatic literary material in English are required

to be manufactured in the United States or Canada.

The illustrations may be manufactured elsewhere

without affecting their copyright status.

The manufacturing requirement does not apply where "the

author of any substantial part" [of the work] is neither a citizen

nor domiciliary of the United States. In other words, the manufacturing

requirement would not apply to a work of which any substantial

• part was written by a foreign author. It would apply only to works

of U.S. authors and only then when no co-author was foreign. Moreover,

works by American nationals domiciled abroad for at least a year

preceding the date when importation is sought would be exempted.
- 12:3 -

Works made for hire. Section 601(b)(1) makes it clear

that the exemption does not apply unless a substantial part of

the work was prepared for an employer or other person who is not a

national or domiciliary of the United States, or a domestic corporation

or enterprise. The reference to "a domestic corporation or enterprise",

the reports say, is intended to include a subsidiary formed by

the domestic corporation or enterprise primarily for the purpose of

obtaining the exemption.

Section 601 adopts a proposal put forward by various

segments of the U.S. and Canadian printing industries recommending

an exemption for copies manufactured in Canada. The legislative

reports note that the wage standards in Canada are substantially

comparable to those in the U.S. and, therefore, equal treatment

arguments were persuasive. Also persuasive, however, was the

"Toronto Agreement." Indeed this is noted in the Conference Report.

Canada is specifically exempted from the provisions

of Section 601... This exemption is included as a

result of an agreement reached in Toronto in 1968...

Upon addition of the Canadian exemption in American

legislation, that agreement contemplates Canadian

adoption of the Florence Agreement and prompt joint

action to remove high Canadian tariffs on printed

matter and the removal of other Canadian restraints

on printing and publishing trade between the two

countries, as well as reciprocal prompt action by U.S.

groups to remove any remaining U.S. barriers to Canadian

printed matter. The Canadian exemption is included in

Section 601 with the expectation that these changes

will be made.

The Conference Report goes on to note that if for any

reason Canadian trade groups and the Canadian Government do not

move promptly in reciprocation with the U.S. trade groups and the

U.S. government to remove such tariff and other trade barriers,

Congress would be expected to remove the Canadian exemption.
- 12:4 -

Limitations on Importation and Distribution of Copies Manufactured 

Abroad (Subsection (b))

The basic objective of section 601 is to induce manufacture

of an edition in the U.S. if more than 2,000 copies are to be imported

or distributed in this country. Subsection (a) therefore provides

in general that "the importation into or public distribution in

the United States" of copies not complying with the manufacturing

requirement is prohibited. Subsection (b) then sets out the exceptions

and clause (2) fixes the limit of importation at 2,000 copies. The

exemption is intended to allow an author or publisher to test the

potential market for the work in America before an entire American

edition is printed.

Additional exceptions to the copies affected by the manufacturing

requirement are set out in clauses (3) through (7) of subsection

(b). Clause (3) permits importation of copies for governmental use,

other than in schools, by the U.S. or by any state or political

subdivision of a state. Clause (4) allows importation for personal

use of "no more than one copy of any work at any one time." It also

exempts copies in the baggage of persons arriving from abroad and

copies intended for the library collection of nonprofit scholarly,

educational, or religious organizatons. Braille copies are exempted

under clause (5), and clause (6) permits the public distribution in

the U.S. of copies allowed entry by the other clauses of that subsection.

Clause (7) covers cases in which an individual American author has,

through choice or necessity arranged for publication of his work by a

foreign rather than a domestic publisher.

Defining the Manufacturing Requirement (Subsection (c))

As the legislative reports note, restrictions to be imposed

on foreign typesetting or composition posed a difficult problem.

A number of publishers, under what they regard as a loophole in the

present law, have been having their manuscripts typeset abroad,

importing "reproduction proofs", then printing their books from

offset plates "by lithographic process...wholly performed in the

U.S." The language in the 1909 law is ambiguous; the practice had

been considered to have support from the Copyright Office since it

registered such claims under its rule of doubt.

The book publishers strenuously opposed any definition that

would have closed this so-called loophole or would interfere with

their use of new techniques, including use of imported computer

tapes for composition here. Subsection (c) is a compromise between

the book publishers and authors and the typographical firms and

printing trade unions.
- 12:5 -

Under subsection (c) the manufacturing requirement is confined

to the following processes:

1. Typesetting and platemaking "where the copies are

printed directly from type that has been set, or

directly from plates made from such type."

2. The making of plates "where the making of plates by

a lithographic or photoengraving process is a final

or intermediate step preceding the printing of copies."

3. In all other cases, the "printing or other final

process of producing multiple copies and any binding

of the copies."

Thus, there is nothing to prevent the importation of reproduction

proofs, however prepared, as long as the plates from which the

copies are printed are made in the U.S. and are not themselves

imported. Also, computer tapes from which plates can be prepared here

could be imported. However, regardless of the process involved, the

actual duplication of multiple copies, together with any binding, are

required to be done in the United States or Canada.

Effect of Noncompliance (Subsection (d))

Subsection (d) makes it clear that compliance with the

manufacturing requirement no longer constitutes a condition of

copyright protection; moreover, the consequences of noncompliance

would affect only reproduction and distribution rights. The present

"ad interim" copyright limitations and registration requirements are

eliminated.

If copies are imported or distributed in violation of

section 601, the copyright owner is not precluded from making and

distributing phonorecords of the work, or from making derivative

works (including dramatizations and motion pictures), or from performing

or displaying the work publicly. Even the rights to reproduce copies

are not lost in cases of violation, although their enforcement is

limited against certain infringers.

An infringer of the exclusive rights of making and distributini

copies would be given a complete defense if: (1) the copyright

owner authorized or acquiesced in an importation or public distribution

of copies in violation of the manufacturing requirement, and (2)

the infringing copies were manufactured in the United States. The

burden of proof is on the infringer.

Subsection (d) also provides, in effect, that a copyright

owner can reclaim his full exclusive rights by manufacturing an

edition in the U.S. and registering his claim in the Copyright

Office.
- 12:6 -

INFRINGING IMPORTATION - (Section 602)

This section has nothing to do with the manufacturing

requirement in section 601, rather it deals with two situations--importation of "piratical" articles (copies or phonorecords made without

any authorization of the copyright owner), and unauthorized importation

of copies or phonorecords that were lawfully made. The general approach

of this section is to make unauthorized importation an act of infringement

in both cases, but to permit the Customs Service to prohibit importation

of only "piratical" articles.

Subsection (a) states that unauthorized importation is

an infringement but then spells out three exceptions: 1. importation

under the authority or for the use of the U.S. government or of any

State or political subdivision of a State, but not including copies

or phonorecords for use in schools or copies of any audiovisual work

imported for purposes other than archival use; 2. importation, for

the private use of the importer and not for distribution, by any

person with respect to no more than one copy or phonorecord of any

one work at any one time, or by any person arriving from outside the

U.S. with respect to copies or phonorecords forming part of such

person's personal baggage; or 3. importation by or for an organization

operated for scholarly, educational, or religious purposes and not

for private gain, with respect to no more than one copy of an audiovisual

work solely for its archival purposes, and no more than five copies

or phonorecords of any other work for its library lending or archival

purposes, unless the importation of such copies or phonorecords is

part of an activity consisting of systematic reproduction or distribution,

engaged in by such organization in violation of the provisions of

section 108(g)(2).

ENFORCEMENT OF IMPORTATION PROHIBITIONS - (Section 603)

The importation prohibitions of both sections 601 and

602 would be enforced under section 603. Subsection (a) authorizes

the Secretary of the Treasury and the U.S. Postal Service to make

regulations for this purpose, and subsection (c) provides for the

disposition of excluded articles.

Subsection (b) deals only with the prohibition against

importation of "piratical" copies or phonorecords, and is aimed

at solving problems that have arisen under the 1909 statute. Since

the Customs Service is usually not in a position to make determinations

as to whether particular articles are "piratical," this subsection

allows the Customs regulations to require the person seeking exclusion

either to obtain a court order enjoining importation, or to furnish

proof of his claim and to post bond.
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CHAPTER THIRTEEN

COPYRIGHT INFRINGEMENT AND REMEDIES

[Sections 501-510]

INFRINGEMENT OF COPYRIGHT (Section 501)

This section contains a statement of what constitutes

an infringement. Subsection (a) identifies an infringer as someone

who "violates any of the exclusive rights of the copyright owner

as provided by sections 106 through 118" or "who imports copies

or phonorecords in violation of section 602."

Because section 201(d) establishes the principle of divisibility of copyrights, there was a need to provide protection for the

rights of all copyright owners and to avoid a multiplicity of suits.

Subsection (b), the reports note, enables the owner of a particular

right to bring an infringement action in that owner's name alone,

while at the same time insuring (to the extent possible) that the

other owners whose rights may be affected are notified and given a

chance to join the action.

501(b) empowers the "legal or beneficial owner" of an

exclusive right to institute a suit for "any infringement of that

particular right committed while he is the owner of it." A "beneficial

owner" is defined in the legislative reports as one who has parted

with his legal title in exchange for percentage royalties based

on sales or license fees.

INJUNCTIONS (Section 502)

Courts are given discretionary power to grant injunctions

and restraining orders, whether "preliminary," "temporary," etc.

to prevent or stop infringements.

IMPOUNDING AND DISPOSITION OF INFRINGING ARTICLES (Section 503)

Courts are given the power to impound allegedly infringing

articles during the time the action is pending. The court is also

empowered to order the destruction or other disposition of articles

found to be infringing.

In both cases the articles affected include "all copies

or phonorecords" and also "all plates, molds, matrices, masters,

tapes, film negatives, or other articles by means of which such

copies or phonorecords may be reproduced."
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DAMAGES AND PROFITS (Section 504)

The legislative reports state that this is the cornerstone of the remedies sections and of the new law as a whole. Two

basic aims of the section are: (1) to give the courts specific

unambiguous directions concerning monetary awards, and at the same

time, (2) to provide the courts with reasonable latitude to adjust

recovery to the circumstances of the case.

Subsection (a) establishes the liability of the infringer

for either "the copyright owner's actual damages and any additional

profits of the infringer," or statutory damages. Recovery of actual

damages and profits, under subsection (b), or of statutory damages,

under subsection (c), is alternative and for the copyright owner

to elect.

This section recognizes that an award of damages serves

a different purpose from an award of profits--it provides: "The

copyright owner is entitled to recover the actual damages suffered

by him or her as a result of the infringement, and any profits

of the infringer that are attributable to the infringement and are

not taken into account in computing the actual damages." Damages

would be paid to compensate the copyright owner for his losses caused

by the infringement, while an award of profits is intended to prevent

the infringer from unjustly benefiting from his wrongful act.

If profits alone are used as a measure of the plaintiff's damages,

however, only one or the other could be awarded. Where the copyright owner has suffered damages not reflected in the infringer's

profits, or where there have been profits attributable to the copyrighted work but not used as a measure of damages, both may be

awarded.

Subsection (c) covers statutory damages. It provides

that the plaintiff's election to recover statutory damages may

take place at any time during the trial before the court has rendered

its final judgment.

Basic provisions:

1. Generally, where the plaintiff elects to recover

statutory damages, the court is obliged to award

between $250 and $10,000. The court may exercise

its discretion within that range, but unless

one of the exceptions in clause (2) is applicable,

it cannot make an award of less than $250 or more

than $10,000.
- 13:3 -

2. An award of minimum statutory damages may be

multiplied if separate works and separately

liable infringers are involved in the suit;

however, a single award in the $250-$10,000 range

is to be made "for all infringements involved in

the action."

A single infringer of a single work is liable

for a single amount no matter how many acts of

infringement are involved and regardless of

whether the acts were separate, isolated, or

occurred in a related series.

3. Where the suit involves infringement of more

than one separate and independent work, minimum

statutory damages must be awarded for each work.

An example is given in the legislative reports--if

one defendant has infringed three copyrighted

works, the copyright owner is entitled to statutory

damages of at least $750 and may be award up to

$30,000. Subsection (c)(1) makes it clear that

"all parts of a compilation or derivative work

constitute one work" for the purpose of assessing

damages. Moreover, although minimum and maximum

amounts are to be multiplied where multiple

"works" are involved, the same is not true with

respect to multiple copyrights, multiple owners,

multiple registrations, or multiple exclusive

rights. This is important since under a scheme

of divisible copyright, it is possible to have the

rights of a number of owners of separate "copyrights"

in a single "work" infringed by one act of a

defendant.

Clause (2) provides for exceptional cases in which the

maximum award could be raised to $50,000 and the minimum could be

reduced to $100. Courts are given discretion to increase statutory

damages in cases of willful infringement and to lower the minimum

where the infringer is innocent.

The innocent infringer provision is where the infringer

"was not aware and had no reason to believe that his or her acts

constituted an infringement of copyright." It was felt that this

provision offered adequate insulation to broadcasters and newspaper

publishers who are particularly vulnerable to this type of infringement

suit.
- 13:4 -

Also, there is a special clause dealing with the special

situation of teachers, librarians, archivists and public broadcasters, and the nonprofit institutions of which they are a part.

Where such person or institution infringes copyrighted material

in the honest belief that what they were doing constituted fair

use, the court is precluded from awarding any statutory damages.

In these cases, the burden of proof with respect to the defendant's

good faith is said to rest on the plaintiff.

COSTS AND ATTORNEY'S FEES (Section 505)

This section leaves the award of costs and attorney's

fees (as part of the costs) entirely in the court's discretion.

Attorney's fees may be awarded to the prevailing party. An exception

to this section is where "the United States or an officer thereof" is

a party.

CRIMINAL OFFENSES (Section 506)

Four specific types of activities constitute a criminal

offense:

1. Criminal infringement--infringement of "a copyright

willfully and for purposes of commercial advantage or

private financial gain";

2. Fraudulent use of copyright notice--with fraudulent

intent, to place on an article a notice that the

defendant "knows to be false" or to publicly distribute

or import any article bearing such a notice;

3. Fraudulent removal of copyright notice--also requires

fraudulent intent in removing or altering a notice;

4. False representation--knowingly making a false

representation in connection with an application

for copyright registration.

This section provides for a fine, imprisonment or both.

There is a special provision applying to any person who

infringes willfully and for purposes of commercial advantage

the copyright in a sound recording or a motion picture. First

offense: fine of not more than $25,000 or imprisonment for not

more than one year, or both. For each subsequent offense, fine of

not more than $50,000 or imprisonment for not more than 2 years, or

both.
- 13:5 -

STATUTE OF LIMITATIONS (Section 507)

This section, which deals with both criminal proceedings

and civil actions, is substantially identical with section 115

of the 1909 law. It establishes a three year statute of limitations.

NOTIFICATION OF FILING AND DETERMINATION OF ACTIONS (Section 508)

This section is intended to establish a method for notifying

the Copyright Office and the public of the filing and disposition

of copyright cases. The clerks of the federal courts are to notify

the Copyright Office of the filing of any copyright actions and

of their final disposition. Courts are also to send a copy of the

written opinion if there is one. The Copyright Office is to make

these notifications a part of its public records.

SEIZURE AND FORFEITURE (Section 509)

This provision allows for the seizure and forfeiture

to the United States of all copies or phonorecords and all the

implements of reproduction, manufacture, or assemblage, used, or

intended for use or possessed with the intent to use in violation of

section 506(a) (criminal infringement).

Subsection (b) states that the applicable procedures

for seizures and forfeitures under Title 19 (customs) shall apply

to forfeitures and seizures under this section insofar as appropriate

and consistent with the terms of this section. For the items

described in subsection (a), however, the actions necessary are

to be performed by such officers, agents or other persons authorized

by the Attorney General rather than employees or officers of the

Treasury Department.

REMEDIES FOR ALTERATION OF PROGRAMMING BY CABLE SYSTEMS (Section 510)

This section allows a remedy for the alteration of or

substitution of programming by cable systems in violation of section

111(c)(3). The court may deprive the system of the compulsory

license for one or more of its distant signals for a period not

exceeding 30 days.
- 14:1 -

CHAPTER FOURTEEN

ADMINISTRATIVE PROVISIONS

[Chapter 7, Sections 701-710]

Chapter 7, entitled "Copyright Office," contains the

administrative or "housekeeping" provisions of the new law.

ADMINISTRATIVE PROCEDURE ACT (Section 701)

Section 701(d) makes the Copyright Office fully subject

to the Administrative Procedure Act (with one exception: under

706(b), reproduction and distribution of deposit copies would be

made under the Freedom of Information Act only to the extend permitted

by the Copyright Office regulations.

REGULATIONS (Section 702)

Section 702 states that the Register of Copyrights is

authorized to establish regulations "not inconsistent with law."

All regulations are subject to the approval of the Librarian of

Congress.

EFFECTIVE DATE OF ACTIONS IN THE COPYRIGHT OFFICE (Section 703)

This section provides that where an action is to be performed

on a specified date and that date falls on a Saturday, Sunday,

holiday, or other non-business day within the District of Columbia,

the action may be taken on the next succeeding business day. It also

provides that the action is effective as of the date when the period

expired.

RETENTION AND DISPOSITION OF ARTICLES DESPOSITED IN THE COPYRIGHT

OFFICE (Section 704)

As the Reports of the Register indicate, a practical

problem of concern to both the Office and the copyright bar concerns

the storage limitations of the Copyright Office. Also mentioned was

the need to retain copies and phonorecords for the identification of

works in which a claim to copyright has been registered. The legislative reports note that aside from its indisputable utility to

future historians and scholars, a substantially complete collection

of both published and unpublished deposits (other than those selected

by the Library) would avoid the many difficulties encountered when

copies needed for identification in connection with litigation or

other purposes have been destroyed.
- 14:2 -

The basic policy behind section 704 is copyright deposits that

should be retained as long as possible. The Register and the Librarian

of Congress, however, are empowered to dispose of deposits under

appropriate safeguards when they jointly decide that it has become

necessary to do so.

•

Section 704(a) makes it clear that any copy or phonorecord,

or identifying material deposited for registration, whether registered

or not, becomes "the property of the United States Government."

The legislative reports state that this means that the copyright

owner or person who made the deposit cannot demand its return as a

matter of right, even in rejection cases.

Section 704(b) deals in the first instance with published

works. It makes all deposits available to the Library of Congress

"for its collections, or for exchanges or transfer to any other

library."

With respect to unpublished works, the Library is authorized

to select any deposit for its own collections or for transfer to the

National Archives or to a federal records center.

704(c) authorizes the Register to make "facsimile" copies

of all or any part of the material deposited under section 408

and to make such reproductions part of the Copyright Office records

of the registration. This is to be done before transferring or

otherwise disposing of the copies or phonorecords.

Subsection (d) deals with deposits not selected by the

Library. It provides that they are to be retained under the control

of the Copyright Office "for the longest period considered practicable

and desirable" by the Register and the Librarian. The aim is to

preserve copyright deposits of all classes of material for as long

a period as is reasonably possible by any practical means of storage.

The 1965 Supplementary Report of the Register states the reference

to "government storage facilities" contemplates that "dead storage"

available in or out of Washington would be considered preferable

to outright destruction.

Because of their unique value and irreplaceable nature,

intentional destruction of unpublished works is prohibited during

their copyright term unless a facsimile reproduction has been made.
- 14:3 -

Subsection (e) establishes a new procedure whereby a

copyright owner can request retention of deposited material for

the full term of copyright. The Register is authorized to issue

regulations prescribing the fees for this service and the "conditions

under which such requests are to be made and granted."

COPYRIGHT OFFICE RECORDS (Section 705)

Subsection (a) requires the Register to keep records of

all deposits, registrations, recordations, and "other actions taken

under this title." The Register must also prepare indexes of all

such records.

Subsection (b) provides that these records and indexes,

as well as the deposits within the control of the Copyright Office,

be open to public inspection.

Subsection (c) provides that upon request and payment

of the prescribed fee, the office shall search its public records,

indexes, and deposits, and furnish a report of the information

they disclose.

COPIES OF COPYRIGHT OFFICE RECORDS (Section 706)

Subsection (a) provides that copies may be made of any

public records or indexes. It also provides for additional certificates.

Subsection (b) provides that copies or reproductions

of deposited articles which are under the Copyright Office's control

shall be furnished only under conditions specified in its regulations.

COPYRIGHT OFFICE FORMS AND PUBLICATIONS (Section 707)

(a) Catalog of Copyright Entries. Sections 210 and

211 of the 1909 law require that an indexed catalog

of all copyright registrations be printed at periodic

intervals, and that it be distributed to customs

and postal officials and offered for sale to the

public.

The Reports of the Register noted that this

catalog is extremely expensive to prepare and that

some parts of it are used much less than others.

The 1961 Report suggested that the purposes of the

catalog might be served better and at less cost if

the Register were given discretion to decide when

and in what form the various parts should be issued.
- 14:4 -

Thus, the new law retains the 1909 law's

basic requirement that the Register compile and

publish catalogs of all copyright registrations at

periodic intervals, but provides for "discretion to

determine on the basis of practicability and usefulness

the form and frequency of publication of each particular

part."

As the legislative reports note, this will in

no way diminish the utility or value of the present

catalogs, and the flexibility allowed, coupled with

the use of new mechanical and electronic devices now

becoming available, will avoid waste.

(b) Other publications. Register is to furnish application

forms and general informational material. The Register

is also authorized to publish other material that

may be of value to the public.

COPYRIGHT OFFICE FEES (Section 708)

(1) for the registration of a copyright claim or

a supplementary registration under section

408, including the issuance of a certificate

of registration, $10;

(2) for the registration of a claim to renewal

of a subsisting copyright in its first term

under section 304(a), including the issuance

of a certificate of registration, $6;

(3) for the issuance of a receipt for a deposit

under section 407, $2;

(4) for the recordation, as provided by section

205, of a transfer of copyright ownership or

other document of six pages or less, covering

no more than one title, $10; for each page

over six and each title over one, 50 cents

additional;

(5) for the filing, under section 115(b), of a

notice of intention to make phonorecords,

$6;

(6) for the recordation, under section 302(c),

of a statement revealing the identity of an

author of an anonymous or pseudonymous work,

or for the recordation, under section

302(d), of a statement relating to the

death of an author, $10 for a document of

six pages or less, covering no more than one

title; for each page over six and for each

title over one, $1 additional;
- 14:5 -

(7) for the issuance, under section 601, of an import

statement, $3;

(8) for the issuance, under section 706, of an additional

certificate of registration, $4;

(9) for the issuance of any other certification, $4;

the Register of Copyrights has discretion, on the

basis of their cost, to fix the fees for preparing

copies of Copyright Office records, whether they are

to be certified or not;

(10) for the making and reporting of a search as provided

by section 705, and for any related services, $10

for each hour or fraction of an hour consumed;

(11) for any other special services requiring a substantial

amount of time or expense, such fees as the Register

of Copyrights may fix on the basis of the cost of

providing the service.

Subsection (b) states that except for the possibility

of waivers in "occasional or isolated cases involving relative

small amounts," the Register is to charge fees for services rendered

to other government agencies.

Subsection (c) provides that the Register may, in accordance

with regulation, refund any sum paid by mistake or in excess of the

required fee. However, before refunding in a rejection case, the

Register "may deduct all or any part of the prescribed registration

fee to cover the reasonable administrative costs of processing

the claim."

DELAY IN DELIVERY CAUSED BY DISRUPTION OF POSTAL OR OTHER SERVICES

(Section 709)

This section authorizes the Register to issue regulations

to permit the acceptance of material which is delivered after the

close of the prescribed period if the delay was caused by a general

disruption or suspension of postal or other transportation or communications

services.

VOLUNTARY LICENSING FOR REPRODUCTIONS FOR THE USE OF THE BLIND AND

PHYSICALLY HANDICAPPED (Section 710)

Section 710 directs the Register, after consulting with

the Chief of the Division for the Blind and Physically Handicapped

and other appropriate officials of the Library of Congress, to

establish, by regulation, forms and procedures by which copyright

owners of certain specified categories of nondramatic literary works

may voluntarily grant to the Library a license to reproduce and

distribute copies or phonorecords of the work solely for the use of

the blind and physically handicapped.
- A1:1 -

APPENDIX ONE

OVERVIEW IN OUTLINE FORM

THE COPYRIGHT ACT OF 1976 (Public Law 94-553, 90 Stat. 2541)

I. Introduction and Background

A. Copyright--U.S. copyright laws stem from Article I, Section

8 of the Constitution. A copyright is a statutory grant of

certain rights for limited times.

B. Need for a new copyright law

1. Last major revision of the Copyright Law, the Act

of 1909, was based on the printing press as the

prime disseminator.

2. Development of new technologies--wide range of new

techniques for communicating, e.g., cable television,

communications satellites, computers, etc.

3. The "copyright revision program" was culminated with

the signing of the new law on October 19, 1976; with

certain exceptions, will take effect on January 1,

1978. [Transitional and Supplementary Provisions,

Section 102.]

a. New law makes a number of fundamental changes;

some so profound that they mark a shift in direction

for the very philosophy of copyright itself.

b. Compromise was the key word; practically every

provision is a product of at least one compromise.

c. New technology not completely dealt with--e.g.,

computer programs and computerized data bases.

Recognized as copyrightable works, Sections 101 and

102(a) but protection is frozen to law in effect on

December 31, 1977, Section 117. Congress is

awaiting CONTU's recommendations.
- A1:2 -

C. Legislative History

1. Senate Report 94-473

2. House Report 94-1476 (NOTE: in connection with this

report, reference must be made to both the "Corrections"

printed in the Congressional Record of September 21, 1976

at pp. 10727-28, reprinted as Copyright Office Announcement

ML-130 and additional corrections, amplifications and

modifications announced during the House Floor Debates

printed in the Congressional Record of September 22,

1976, reprinted in Copyright Office Announcement ML-132.)

3. Conference Report: House Report 94-1733

II. Major Provisions

A. Preemption of state and common law copyright protection--

Section 301

1. Single national system for all works within the subject

matter of copyright fixed in a copy or phonorecord

2. Protection begins on the date of creation

3. Exception: sound recordings fixed before February 15,

1972--Section 301(c)

B. Duration

1. For works created after the effective date of the

new law--Section 302

a. Basic term: life of the author plus fifty years

b. Joint work: life of the last surviving author

plus fifty years

c. Anonymous, pseudonymous, and works made for hire:

75 years from first publication or 100 years from

creation, whichever is shorter

d. Copyright Office to keep records

e. System of presumptions established to take care

of the situation in which a user cannot determine

the date of the author's death
- A1:3 -

2. For preexisting works under common law protection

on the effective date of the new law--Section 303

a. Same terms as in Section 302

b. To assure that all works are given a "reasonable"

term, guarantee of 25 years of protection. If work

published before 2002, term of protection extended

another 25 years.

3. 'Duration of subsisting copyrights--Section 304 (maximum

of 75 years)

a. For works in their first term on January 1, 1978

28 years for the first term and provision for a

renewal term of 47 years

b. For works already in their second, renewal term,

including copyrights whose renewal terms have

been extended, the renewal term is automatically

extended to make a total of 75 years--Transitional

and Supplementary Provisions, Section 102

4. All terms expire on December 31st--Section 305

C. Ownership

1. Fountainhead of copyright is the author, and copyright

ownership in the first instance belongs to the author--

Section 201(a)

2. Works made for hire--Sections 201(b) and definition in

Section 101

3. Divisibility--Section 201(d)(2): first statutory recognition.

Any of the exclusive rights that go to make up a copyright

can be transferred and owned separately. The definition of

"transfer of ownership" in Section 101 makes it clear

that the principle of divisibility applies whether or not

the transfer is "limited in time or place of effect."

4. Transfers of copyright ownership must be in writing

and signed by the owner of the rights conveyed or by

such owner's duly authorized agent

5. Documents to be recorded in the Copyright Office--

Sections 204, 205
- A1:4 -

D. Termination of Transfers and Licenses

1. Grants by the author (other than by will) made

on or after January 1, 1978 of exclusive or nonexclusive

rights arising under the new law but not including

works made for hire may be terminated during a five year

period beginning at the end of 35 years from the

date of the grant. If, however, the grant covers the

right of publication, the termination period begins

35 years from the date of publication or 40 years

from the date of the grant, whichever is shorter.

See Section 203 and House Report 94-1476, pp. 124-

128

a. Termination may be effected by serving a

written notice no less than two nor more

than 10 years before termination is to take

effect. Notice must comply with Copyright

Office regulations and a copy of the notice

must be recorded in the Copyright Office before

the effective date of termination

b. All rights revert to those with a right to

terminate except that derivative works prepared

before termination may continue "to be utilized"

under the terms of the grant

c. Rights vest on the date that the notice is

served

d. "Termination of the grant may be effected

notwithstanding any agreement to the contrary,

including any agreement to make a will or to

make any further grant." Section 203(a)(5)

2. Grants by the author or grants executed by those

beneficiaries of the author who could claim renewal

under the present law may be terminated at the

end of 56 years from the date copyright was originally

secured or beginning on January 1, 1978, whichever

is later. See Section 304(c) and House Report

94-1476 pp. 140-142

a. Does not apply to works made for hire
- A1:5 -

b. Applies only to grants made before January

1, 1978

E. Scope of Exclusive Rights--Section 106 sets forth five

basic rights. Rights are cumulative and to some extent

overlap

F. Limitations on the rights of copyright owners

1. Doctrine of Fair Use--generally speaking, copying

without permission from, or payment to, the copyright

owner is allowed where the use is reasonable and

not harmful to the rights of the copyright owner--

Section 107

a. Four factors to be considered are included

b. Legislative reports make it clear that Section

107 as drafted is intended to restate present

judicial doctrine; it is not intended to

change, narrow or enlarge it in any way

c. Guidelines for educational use of Print Material

and Music--see pp. 68-72 of House Report

94-1476 and correction in Congressional Record

of September 22, 1976.

2. Reproduction by Libraries and Archives--Section

108. For Inter-Library Loan Guidelines see Conference

Report

3. Computer and data base uses--Section 117. Recognizes

computer programs and data bases as copyrightable

subject matter but freezes protection respecting

use in automatic storage and retrieval systems

4. Compulsory licenses [A compulsory license is a

device allowing use of the copyrighted work without

the owner's permission but guaranteeing remuneration

for the owner]--new law has four

a. Compulsory license for making and distributing

phonorecords embodying nondramatic musical

compositions--Section 115

b. Public Performance by means of coin-operated

phonorecord players--Section 116
- A1:6 -

c. Secondary transmissions--Section 111

d. Use of published nondramatic musical works

and pictorial, sculptural and graphic works

by noncommercial broadcasters--Section 118

e. Creation of a Copyright Royalty Tribunal

(Chapter 8) to determine the reasonable terms

and rates of royalty payments under Section

118, to distribute the royalties collected

under Sections 111 and 116, and to resolve

certain disputes. Also to periodically review

the royalty rates of all four compulsory

licenses

G. Formalities: notice, deposit and registration. Relaxed,

and more amenable to international standards

1. Notice--Sections 401-406: preserve the requirement

for a notice on copies that are publicly distributed

anywhere but substantially ameliorate the effects of

accidental or even deliberate errors or omissions.

Subject to certain safeguards for innocent infringers,

protection would not be lost by the complete omission of

the notice from large numbers of copies or from a whole

edition, if registration for the work is made before or

within 5 years after such publication and a reasonable

effort is made to add notice to copies or phonorecords

publicly distributed in the U.S. after the omission is

discovered

2. Deposit and Registration--Sections 407-412

a. Registration and deposit are now separate formalities

which could and would usually be combined

b. Deposit for the Library of Congress of copies or

phonorecords published with a notice of copyright

in the United States--Section 407. Failure to

deposit after written demand makes the copyright

owner liable for the cost of the copies and fines.
- A1:7 -

c. Registration permissive, Section 408, but

is a prerequisite to an infringement suit

(Section 411)

3. Manufacturing requirement--Section 601. Substantially

liberalized, scheduled to be phased out on July 1,

1982 [Register to report on the effect of this by July,

1981 so that Congress may reexamine this issue].

a. Applies only to "a work consisting preponderantly

of nondramatic literary material that is in

the English language" and is protected by Title

17

b. Does not apply where the author of any substantial

part of the work is neither a citizen nor

domiciliary of the U.S.

c. Works of American national domiciled abroad

for at least one year preceding the date when

importation is sought or distribution in the

U.S. desired are exempted

d. Requirement of U.S. manufacture is satisfied

by manufacture in Canada

e. Present importation limit of 1500 copies

expanded to 2000

H. Remedies--Chapter 5, Sections 501-509

1. Definition of an infringement, Section 501

2. Injunctions, Section 502

3. Impounding and disposition of infringing articles,

Section 503

4. Damages and profits, Section 504

a. Actual damages, Section 504(6)

b. Statutory damages, Section 504(c)

1. Not less than $250 nor more than $10,000

2. Willfull - in court's discretion may

increase award to not more than $50,000
- A1:8 -

3. Innocent infringer

(a) General-court may, in its

discretion, reduce to not

less than $100

(b) Special-employee or agent

of a nonprofit educational

institution, library, or archives

itself, or public broadcasting

entity or an employee of such

entity: court shall remit

statutory damages where infringer

believed and had reason to

believe the use was fair

c. Must elect between actual and statutory damages

5. Attorney's fees, Section 505

6. Criminal provisions, Section 506

7. Alternation of programming by cable systems, Section 510
APPENDIX TWO

THE 1909 ACT VS. THE 1976 ACT ( A COMPARISON)

SUBJECT

MATTER

Act of March 4, 1909

Protects "writings" of an author. Writing

has been interpreted as requiring fixation

in a tangible form and a certain minimum

amount of original, creative authorship. [Section 4]

14 classes of works enumerated:

Class A - Books, including

composite and cyclopedic

works

Class B - Periodicals, including newspapers

Class C - Lectures, sermons,

addresses (prepared for

oral delivery)

Class D - Dramatic or

dramatico-musical

compositions

Class E - Musical compositions

Class F - Maps

Class G - Works of art; models

or designs for works of art

Class H - Reproductions of a

work of art

Class I - Drawings of plastic

works of a scientific or

technical character

Class J - Photographs

Class K - Prints and

pictorial illustrations

including prints or

Act of October 19, 1976

Protects "original works of authorship which

are fixed in a copy (material object, other

than a phonorecord, from which the work can

be perceived, reproduced, or otherwise

communicated, either directly or with the

aid of a machine or device) or a phonorecord. [Sections 102(a), 301, 101]

7 classes of works enumerated:

(1) literary works

(2) musical works, including any accompanying

words

(3) dramatic works, including any

accompanying music

(4) pantomimes and choreographic works

(5) pictorial, graphic, and sculptural

works

(6) motion pictures and other audiovisual works

(7) sound recordings. [Section 102(a)]

The Register of Copyrights to specify

classification for registration purposes only.

Classes will be:

Class TX - for claims in nondramatic

literary works, other than audiovisual

works, expressed in words, numbers or

other verbal or numerical symbols or

indicia.

Class PA - for claims in musical

works, including any accompanying
STANDARDS OF

COPYRIGHTABILITY

labels used for articles

of merchandise

Class L - Motion picture

photoplays

Class M - Motion-pictures

other than photoplays

Class N - Sound recordings

[Section 5]

"New versions"--"compilations,

abridgments, adaptations,

arrangements, dramatizations,

translations or other new

versions when produced

with the consent of the

copyright owner."

[Section 7]

Product of case law. Work

must represent an appreciable

amount of original, creative

authorship. Original means that

the author produced it by his own

intellectual effort as distinguished

from copying from another.

words; dramatic works, including any

accompanying music; pantomimes;

choreographic works; and motion

pictures and other audiovisual works.

Class VA - for claims in pictorial,

graphic, and sculptural works.

Class SR - for claims in works

resulting from the fixation of a

of a series of musical, spoken,

or other sounds, but not including

the sounds accompanying a motion

picture or other audiovisual work.

"Compilations and derivative works."

(Derivative work is defined as

every copyrightable work that

employs preexisting material

or data.) Consent of the copyright owner is not a condition of

protection; copyright protection

"does not extend to any part of

the work" in which the preexisting material "has been used

unlawfully." [Section 103]

Legislative reports accompanying

Public Law 94-553 indicate that the

standards of copyrightability remain

unchanged.
Act of 1909

The following works are eligible

for copyright protection in the

United States:

1. Works by United States citizens;

2. Works by an author who is domiciled

in the U.S. on the date of first

publication;

3. Works by an author who is a citizen

of a country with which the U.S.

has copyright relations;

4. Works first published in a country

other than the U.S. that belongs to

the Universal Copyright Convention.

Works by authors that are stateless--

status of these works is unclear.

Copyright Office registers these claims

under its rule of doubt.

[Section 91

Copyright vests initially in the author

Joint works--There is no statutory provisions but courts have held that, in the

absence of an agreement to the contrary,

joint authors will be deemed as tenants in

common. This means that each owns an undivided interest in the entire work and

each has an independent right to use or

license the entire work. There is no

definition of a "joint work" and courts have

defined this extremely broadly and eroded

the original concept.

ELIGIBILITY

OWNERSHIP

TRANSFER OF

OWNERSHIP

A2:03

Act of 1976 

All unpublished works are eligible for copyright protection in the United States.

If the work is published, it is eligible for U.S.

protection if one of the following applies:

1. On the date of first publication, one

or more of the authors is a national or

domiciliary of the U.S, or is a national

or domiciliary, or sovereign authority of

a foreign nation that is a party to a copyright treaty of which the U.S. also is a

party;

2. If on the date of first publication, one or

more of the authors is stateless;

3. If the work is first published in the United

States or in a foreign nation that on the date

of first publication is a part of the Universal

Copyright Convention;

4. If the work comes within the scope of a Presidental proclamation.

[Section 104]

The original source of ownership is the author.

[Section 201(a)]

"The authors of a joint work are coowners of

copyright in the work." [Section 201(a)] A

work is defined as joint when the authors

collaborate with each other or if each of

the authors prepared his or her contribution

with the knowledge and intention that it would

be merged with the contributions of the other

authors as "inseparable or interdependent parts

of a unitary whole." [Section 101]
Act of 1909

Work made for hire--The statute provides

"the word 'author' shall include an

employer in the case of works made for hire."

[Section 26] There is no definition of a

work made for hire in the law. Courts,

however, have generally said a work prepared

by employee within the scope of his employment is a work made for hire. Important

factors include the right of the employer to

direct and supervise the manner in which the

work is performed, payment of wages or other

renumeration, and the existence of a

contractual arrangement concerning the

creation of the work. Many "commissioned"

works have been considered works made for hirE

Copyright said to be indivisible; transfer

of anything less than all of the rights was

a license. Only transfers of ownership

(assignments) had to be in writing and be

signed by the party granting the transfer.

[Section 28] Assignments should have been

recorded in the Copyright Office.

[Section 30]

OWNERSHIP

TRANSFER OF

OWNERSHIP

A2:04

Act of 1976 

"In the case of a work made for hire,

the employer or other person for whom the

work was prepared is considered the author..."

[Section 201(b)]

Work made for hire is defined. For a commissioned

work or one prepared on special order, only certain

categories can be works made for hire. Also, the

parties must expressly agree to this in writing

and both parties must sign the document. [Section 101]

Copyright is made completely divisible. [Section 201

(d)(2)] Transfer of ownership is defined as an

assignment, mortgage, exclusive license of any of the

exclusive rights comprised in a copyright, whether

limited in time or place of effect Transfers must

be in writing and signed by the party making the

transfer. [Section 2041 Transfers should be recorded

in the Copyright Office. [Section 2051

Transfers made by authors on or after January 1,

1978, otherwise than by will, may be terminated

after a certain period of time. The notice of

termination must be filed by certain specified

people no more than 10 nor less than 2 years

before the date of termination. The notice

must comply in form, content and manner of

service with regulations the Register

of Copyrights is to prescribe. [Section 2031

Termination of the grant may be effected notwithstanding any agreement to the contrary

[Section 203(a)(5)]
SECURING

COPYRIGHT

PROTECTION

DURATION

Act of 1909

For unpublished compositions that are registrable, it is the act of registering a claim in

the Copyright Office that secures the copyright.

For published works it is the act of publication of the work in visually perceptible

copies with the required notice of copyright

that secures the copyright. The notice must

appear in a location specified by the law,

e.g., for a book either upon the title

page or the page immediately following.

[Section 20] Promptly after publication,

a claim should be registered in the Copyright Office. [Section 13] If a work

is published without an acceptable notice,

copyright protection is lost and cannot be

regained.

For unpublished works the term is exactly

28 years from the date of registration; a

renewal claim may be filed in the 28th year

in which case there is an additional term

of 28 years. Copyright protection will

expire either 28 or 56 years from the

exact date of registration.

For published works the term is same as

for unpublished works except the term is

measured from the date of first publication. [Section 24]

A2:05

Act of 1976

The act of creation and fixing the work

in a copy or phonorecord secures the

copyright. [Section 301]

For works created on or after January 1,

1978, the term of copyright will be:

1. life of the author plus 50

years

2. joint works--life of the last

surviving author plus 50 years

3. anonymous, pseudonymous works,

if the name of the author is not

revealed in Copyright Office

records, and works made for hire--

100 years from creation or 75

years from first publication,

whichever is shorter.

[Section 302]
Act of 1909 

The required notice of copyright must be affixed to each

copy published or offered for

sale. [Section 10]

DURATION

NOTICE 

WHEN

REQUIRED

A2:06

Act of 1976

For unpublished works created, but

not registered before January 1,

1978, the term of copyright is the

same as for works created after

January 1, 1978 except there is a

guarantee of protection until

December 31, 2002. [Section 303]

For works under statutory (federal)

copyright protection on December 31,

1977--if copyright is renewed during

the last (28th) year then the term

will be 75 years. [Section 304]

All terms will run out on December

31st of the year in which they would

otherwise expire. [Section 305]

The required notice of copyright

must be placed on all visually

perceptible copies and phonorecords

of sound recordings that are

distributed to the public under the

authority of the copyright owner.

[Sections 401, 402]
FORM OF

NOTICE

PLACEMENT

Act of 1909

For works other than sound

recordings: the word "copyright,"

the abbreviation "Copr.", or

the symbol "0" accompanied by

the name of the copyright proprietor and the year in which

copyright was secured by publication (or, in some cases,

registration). (There are certain

exceptions to this basic rule.)

[Section 19]

For sound recordings: the symbol (P) (the letter P in a circle),

the year of first publication of

the sound recording; and the name

of the owner of copyright in

the sound recording, or a

recognizable abbreviation or

generally known alternative

designation of the name.

[Section 19]

Specified by type of work - e.g.,

for a book or other printed

publication, upon the title page

or the page immediately following...;

For music, upon the title page or

first page of music...;

[Section 20]

For sound recordings - "reasonable

notice" of the claim to copyright

[Section 20]

A2:07

Act of 1976

For visually perceptible copies:

the symbol C) (the letter C in a circle),

or the word "copyright," or the abbreviation "Copr."; and the name of the

copyright owner, or a recognizable abbreviation or a generally known alternative

designation, and the year of first publication. [Section 401]

For sound recordings: same as the Act of

1909 [Section 402]

For visually perceptible copies -

"reasonable notice" of the copyright

claim. Copyright Office regulation

will include examples of reasonable

placement and affixation of the copyright notice. [Section 401]

For phonorecords of sound recordings -

same as the previous law -

[Section 402]
Act of 1909 

If the notice is omitted or contains

a serious error, copyright is lost and

cannot be regained.

"Promptly after publication, two

copies of the best edition" are to

be deposited with an application and

fee of $6.00. Thus, registration

and deposit are joined.

[Sections 13, 215]

Failure to deposit the required

material after a "demand" by the

Register of Copyrights can result

in the copyright becoming void.

[Section 14]

Unpublished works that are subject

to registration--one complete copy

of the work in legible notation must

be sent to the Copyright Office with a

properly completed application and a

fee of $6.00 Phonorecords are not

acceptable as deposit copies of the

underlying works they embody.

[Section 12, 215]

EFFECT OF

OMISSION OR

ERROR IN

NOTICE

DEPOSIT

REGISTRATION

A2:08

Act of 1976 

If the notice is omitted or there is

a serious error, there is no effect as

long as the claim to copyright is

registered in the Copyright Office

before or within 5 years of publication

without the notice and a "reasonable effort"

is made to add the notice to copies that

are later distributed in the U.S.

[Section 405]

Within three months after the work has been

published with a copyright notice in the

U.S., the copyright owner should deposit

two complete copies or phonorecords of the

"best edition". "Best edition" will be

determined by the needs of the Library

of Congress. The Register of Copyrights, may

by regulation, exempt any categories of

material from this requirement, or require

deposit of only one copy or phonorecord with

respect to any category. Alternate forms of

deposit may also be allowed. [Section 407]

Failure to deposit the required material within

three months after the Register of Copyrights

makes a written demand will subject the

copyright owner to fines. [Section 407(d)]

Registration for both published and unpublished works is entirely permissive.

There are, however, substantial inducements

to register. [Section 408(a)]

Unpublished works--one complete copy or

phonorecord must be sent with the appropriate application form and a fee of $10.

[Sections 408, 709]
Act of 1909 

Published compositions--two complete

copies of the best edition as first

published must be sent to the Copyright Office with a properly completed

application and a fee of $6.00. The

first published edition of a work

registered in unpublished form must be

registered again. [Sections 12, 13, 215]

The copyright owner of a musical

composition has the exclusive right

to make or license the first

recording of the work.

Whenever the copyright owner of

a musical composition has used

or permitted his work to be

recorded then anyone else may make

"similar use" by complying with the

compulsory license provisions of the

law.

REGISTRATION

COMPULSORY LICENSE TO USE

COPYRIGHTED

MUSICAL COMPOSITIONS ON

PHONORECORDS

A2:09

Act of 1976

Published works-two complete copies of

the best edition (or in the case of

works first published abroad or

contributions to collective works, one

complete copy) with an appropriate

application and a fee of $10 must

be sent to the Copyright Office.[Sections 408, 708]

The Register of Copyrights, by regulation,

can require or permit the deposit of identifying

material instead of copies, or the deposit of

phonorecords rather than notated copies.

The Register may also allow the deposit of

one copy rather than two and provide for a

single registration for a group of related

works. [Section 408]

The copyright owner of a musical composition

has the exclusive right to make or license

the first recording of the work.

Once phonorecords have been distributed to

the public in the U.S. under the authority

of the copyright owner, the work becomes

subject to the compulsory license.

The compulsory license is available only

if the user's primary purpose is to

distribute the phonorecords to the

public for home use.
Act of 1909 

Compulsory licensee must send to the

copyright owner, by registered mail,

a notice of his intention to use the

music; a copy of that notice must be

sent to the Copyright Office for

recordation.

Once a copyright owner records or

licenses his work for recording, he must

file notice of use (Form U) with the

Copyright Ofice. Courts have held that

the copyright owner cannot collect royalties

for any infringing records made before he

files this notice

[Sections 1(e), 101(e)]

COMPULSORY LICENSE TO USE

COPYRIGHTED

MUSICAL COMPOSITIONS ON

PHONORECORDS

A2:10

Act of 1976 

The compulsory license includes the privilege

of making a musical arrangement of the work to

the extent necessary to conform it to the style

or manner of interpretation of the performance

involved; the new arrangement cannot change the

basic melody or fundamental character of the

work. The arrangement is not subject to protection as a derivative work unless the copyright owner expressly gives his consent.

To obtain a compulsory license, the user must

send a notice of his intent to the copyright

owner. It must be served before or within

30 days after making and before distributing

any phonorecords. This notice must comply in

form, content and manner of service with

regulations prescribed by the Register of Copyrights. A copy of this notice need not be sent

to the Copyright Office.

To be entitled to royalties the copyright owner

must be identified in the registration or other

public records of the Copyright Office.

If the registration or other public records of

the Copyright Office do not identify the copyright owner and his address, the notice should

be filed with the Copyright Office.
COMPULSORY LICENSE TO USE

COPYRIGHTED

MUSICAL COMPOSITIONS ON

PHONORECORDS

Act of 1909 

On the 20th of each month, the compulsory

licensee must account to the copyright owner

of the music. He must send the required

royalty of 2 cents for each "part"

manufactured.

A2:11

Act of 1976

Failure to file a notice of intent

forecloses the possibility of a

compulsory license.

Compulsory licensee must pay 2 3/4 cents

or 1/2 cent per minute of playing time

or fraction thereof, whicher is larger,

for records that are made and distributed.

Royalty payments are to be made on

or before the 20th day of each month.

Each payment must be under oath and must

comply with the requirements of the

Copyright Office regulations.

The Register of Copyrights, by

regulation, is to establish criteria

for the detailed annual statements of

account which must be certified by an

independent Certified Public Accountant.

The notice of use (Form U) is no longer

required.

[Section 115]
- A3:1 -

APPENDIX THREE

EDUCATIONAL AND CONTU GUIDELINES

AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NO-FOR-PROFIT

EDUCATIONAL INSTITUTION

WITH RESPECT TO BOOKS AND PERIODICALS 

The purpose of the following guidelines is to state

the minimum, and not the maximum standards of educational fair

use under section 107 of H.R. 2223. The parties agree that

the conditions determining the extent of permissible copying

for educational purposes may change in the future; that certain

types of copying permitted under these guidelines may not be

permissible in the future; and conversely that in the future

other types of copying not permitted under these guidelines

may be permissible under revised guidelines.

Moreover, the following statement of guidelines

is not intended to limit the types of copying permitted under

the standards of fair use under judicial decision and which

are stated in section 107 of the Copyright Revision Bill.

There may be instances in which copying which does not fall

within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

GUIDELINES 

I. SINGLE COPYING FOR TEACHERS:

A single copy may be made of any of the following

by or for a teacher at his or her individual request for his

or her scholarly research or use in teaching or preparation

to teach a class:

A. A chapter from a book;

B. An article from a periodical or newspaper;

C. A short story, short essay or short poem

whether or not from a collective work;

D. A chart, graph, diagram, drawing, cartoon

or picture from a book, periodical, or newspaper.
- A3:2 -

II. MULTIPLE COPIES FOR CLASSROOM USE: 

Multiple copies (not to exceed in any event more

than one copy per pupil in a course) may be made by or for

the teacher giving the course for classroom use or discussion;

provided that: 

A. The copying meets the tests of brevity and

spontaneity as defined below;

and,

B. Meets the cumulative effect test as defined

below;

and

C. Each copy includes a notice of copyright.

DEFINITIONS: 

Brevity: 

i. Poetry: (a) A complete poem if less than 250

words and if printed on not more than two pages or, (b) from

a longer poem, an excerpt of not more than 250 words.

ii. Prose; (a) Either a complete article, story

or essay of less than 2,500 words, or (b) An excerpt from any

prose work of not more than 1,000 words or 10% of the work,

whichever is less, but in any event a minimum of 500 words.

[Each of the numerical limits stated in "i" and "ii"

above may be expanded to permit the completion of an

unfinished line of a poem or of an unfinished prose

paragraph.]

iii. Illustration: One chart, graph, diagram,

drawing, cartoon or picture per book or per periodical issue.
- A3:3 -

iv. "Special" works: Certain works in poetry,

prose or in "poetic prose" which often combine language with

illustrations and which are intended sometimes for children

and at other times for a more general audience fall short

of 2,500 words in their entirety. Paragraph "ii" above notwithstanding such "special works" may not be reproduced in

their entirety; however, an excerpt comprising not more than

two of the published pages of such special work and containing not more than 10% of the words found in the text thereof,

may be reproduced.

Spontaneity: 

i. The copying is at the instance and inspiration

of the individual teacher, and

ii. The inspiration and decision to use the work and the

moment of its use for maximum teaching effectiveness

are so close in time that it would be unreasonable to

expect a timely reply to a request for permission.

Cumulative Effect: 

i. The copying of the material is for only one course in

the school in which the copies are made.

ii. Not more than one short poem, article, story, essay or

two excerpts may be copied from the same author, nor

more than three from the same collective work or periodical

volume during one class term.
- A3:4 -

iii. There shall not be more than nine instances

of such multiple copying for one course during one class

term.

[The limitations stated in "ii" and "iii" above shall

not apply to current news periodicals and newspapers

and current news sections of other periodicals.]

III. PROHIBITIONS AS TO I AND II ABOVE:

Notwithstanding any of the above, the following

shall be prohibited:

A. Copying shall not be used to create or to replace

or substitute for anthologies, compilations or collective

works. Such replacement or substitution may occur

whether copies of various works or excerpts therefrom

are accumulated or are reproduced and used separately.

B. There shall be no copying of or from works intended to

be "consumable" in the course of study or of teaching.

These include workbooks, exercises, standardized tests

and test booklets and answer sheets and like consumable

material.

C. Copying shall not:

a. substitute for the purchase of books,

publisher's reprints or periodicals;

b. be directed by higher authority;

c. be repeated with respect to the same

item by the same teacher from term to term.

D. No charge shall be made to the student beyond

the actual cost of the photocopying.
- A3:5 -

In addition, representatives of the Music Publishers'

Association of the United States, Inc., the National Music Publishers'

Association, Inc., the Music Teachers National Association, the

Music Educators National Conference, the National Association of

Schools of Music and the Ad Hoc Committee on Copyright Revision

developed the following guidelines:

GUIDELINES UNDER FAIR USE FOR MUSIC

The purpose of the following guidelines is to state the

minimum and not the maximum standards of educational fair use

under section 107 of H.R. 2223. The parties agree that the

conditions determining the extent of permissible copying for

educational purposes may change in the future; that certain

types of copying permitted under these guidelines may not

be permissible in the future; and conversely that in the

future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is

not intended to limit the types of copying permitted under

the standards of fair use under judicial decision and which

are stated in section 107 of the Copyright Revision Bill.

There may be instances in which copying which does not fall

within the guidelines stated below may nonetheless be permitted

under the criteria of fair use.

A. PERMISSIBLE USES 

1. Emergency copying to replace purchased copies which

for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

2. For academic purposes other than performance, single

or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the

whole which would constitute a performable unit such as

a section, movement or aria, but in no case more than

(10%) of the whole work. The number of copies shall not

exceed one copy per pupil.
- A3:6 -

3. Printed copies which have been purchased may be edited

or simplified provided that the fundamental character of

the work is not distorted or the lyrics, if any, altered

or lyrics added if non exist.

4. A single copy of recordings of performance by students

may be made for evaluation or rehearsal purposes and

may be retained by the educational institution or

individual teacher.

5. A single copy of a sound recording (such as a tape,

disc or cassette) of copyrighted music may be made from

sound recordings owned by an educational institution or

an individual teacher for the purpose of constructing

aural exercises or examinations and may be retained by

the educational institution or individual teacher. (This

pertains only to the copyright of the music itself and

not to any copyright which may exist in the sound recording.)

B. PROHIBITIONS 

1. Copying to create or replace or substitute for anthologies, compilations or collective works.

2. Copying of or from works intended to be "consumable"

in the course of study or of teaching such as workbooks,

exercises, standardized tests and answer sheets and like

material.

3. Copying for the purpose of performance, except as in

A(1) above.

4. Copying for the purpose of substituting for type purchase of music, excepts as in A(1) and A(2) above.

5. Copying without inclusion of the copyright notice

which appears on the printed copy.
- A3:7 -

CONTU Guidelines for interlibrary loans 

PHOTOCOPYING--INTERLIBRARY ARRANCEnENTS

Introduction

Subsection 108(g)(2) of the bill deals, among other

things, with limits on interlibrary arrangements for photocopying.

It prohibits systematic photocopying of copyrighted materials but

permits interlibrary arrangements "that do not have as their purpose

or effect, that the library or archives receiving such copies or

phonorecords for distribution does so in such aggregate quantities

as to substitute for a subscription to or purchase of such work."

The National Commission on New Technological Uses of Copyrighted Works offered its good offices to the House and Senate subcommittees in bringing the interested parties together to see if

agreement could be reached on what a realistic definition would be

of "such agregate quantities." The Commission consulted with the

parties and suggested the interpretation which follows, on which

there has been substantial agreement by the principal library,

publisher, and author organizations. The Commission considers the

guidelines which follow to be a workable and fair interpretation

of the intent of the proviso portion of subsection 108(g)(2).

These guidelines are intended to provide guidance in the

application of section 108 to the most frequently encountered

interlibrary case: a library's obtaining from another library,

in lieu of interlibrary loan, copies of articles from relatively

recent issues of periodicals--those published within five years prior

to the date of the request. The guidelines do not specify what

aggregate quantity of copies of an article or articles published

in a periodical, the issue date of which is more than five years

prior to the date when the request for the copy thereof is made,

constitutes a substitute for a subscription to such periodical.

The meaning of the proviso to subsection 108(g)(2) in such case is

left to future interpretation.

The point has been made that the present practice on

interlibrary loans and use of photocopies in lieu of loans may

be supplemented or even largely replaced by a system in which one

or more agencies or institutions, public or private, exist for

the specific purpose of providing a central source for photocopies.

Of course, these guidelines would not apply to such a situation.
- A3:8 -

GUIDELINES FOR THE PROVISO OF SUBSECTION 108(G)(2) 

1. As used in the proviso of subsection 108(g)(2), the

words "...such aggregate quantities as to substitute for

a subscription to or purchase of such work" shall

mean:

(a) with respect to any given periodical (as opposed

to any given issue of a periodical), filled requests

of a library or archives (a "requesting entity")

within any calendar year for a total of six or more

copies of an article or articles published in such

periodical within five years prior to the date of

the request. These guidelines specifically shall

not apply, directly or indirectly, to any request

of a requesting entity for a copy or copies of an

article or articles published in any issue of a

periodical, the publication date of which is more

than five years prior to the date when the request

is made. These guidelines do not define the

meaning, with respect to such a request, of "...such

aggregate quantities as to substitute for a subscription

to [such periodicall".

(b) with respect to any other material described

in subsection 108(d), (including fiction and

poetry), filled requests of a requesting entity

within any calendar year for a total of six or more

copies or phonorecords of or from any given work

(including a collective work) during the entire

period when such material shall be protected by

copyright.

2. In the event that a requesting entity--

(a) shall have in force or shall have entered an

order for a subscription to a periodical, or

(b) has within its collection, or shall have entered

an order for, a copy or phonorecord of any other

copyrighted work, material from either category of

which it desires to obtain by copy from another

library or archives (the "supplying entity"),

because the material to be copied is not reasonably

available for use by the requesting entity itself,

then the fulfillment of such request shall be

treated as though the requesting entity made such

copy from its own collection. A library or archives

may request a copy or phonorecord from a supplying

entity only under those circumstances where the

requesting entity would have been able, under the

other provisions of section 108, to supply such

copy from materials in its own collection.

3. No request for a copy or phonorecord of any material

to which these guidelines apply may be fulfilled by the supplying

entity unless such request is accompanied by a representation

by the requesting entity that the request was made in conformity

with these guidelines.
- A3:9 -

4. The requesting entity shall maintain records of all

requests made by it for copies or phonorecords of any materials

to which these guidelines apply and shall maintain records of the

fullfillment of such requests, which records shall be retained

until the end of the third complete calendar year after the

end of the calendar year in which the respective request shall

have been made.

5. As part of the review provided for in subsection 108(i),

these guidelines shall be reviewed not later than five years

from the effective date of this bill.

The conference committee is aware that an issue has arisen

as to the meaning of the phrase "audiovisual news program" in section

108(f)(3). The conferees believe that, under the provision as

adopted in the conference substitute, a library or archives qualifying

under section 108(a) would be free, without regard to the archival

activities of the Library of Congress or any other organization, to

reproduce, on videotape or any other medium of fixation or reproduction,

local, regional, or network newscasts, interviews concerning current

news events, and on-the-spot coverage of news events, and to distribute

a limited number of reproductions of such a program on a loan basis.

Another point of interpretation involves the meaning of

"indirect commercial advantage," as used in section 108(a)(1),

in the case of libraries or archival collections within industrial,

profit-making, or proprietary institutions. As long as the library

or archives meets the criteria in section 108(a) and the other

requirements of the section, including the prohibitions against

multiple and systematic copying in subsection (g), the conferees

consider that the isolated, spontaneous making of single photocopies by

a library or archives in a for-profit organization without any

commercial motivation, or participation by such a library or archives

in interlibrary arrangements, would come within the scope of section

108.
- A4:1 -

OFFICIAL SOURCE MATERIALS

ON COPYRIGRT REVISION

I. Copyright Revision Studies, Nos. 1-35

Studies prepared for the Subcommittee on Patents, Trademarks,

and Copyrights of the Committee on the Judiciary, U.S. Senate.

STUDIES 1-4. 142 pages. 1960.

1. The History of U.S.A. Copyright Law Revision

from 1901 to 1954

2. Size of the Copyright Industries

3. The Meaning of "Writings" in the Copyright

Clause of the Constitution

4. The Moral Right of the Author

STUDIES 5-6. 125 pages. 1960.

5. The Compulsory License Provision of the U.S.

Copyright Law

6. The Economic Aspects of the Compulsory

License

STUDIES 7-10. 125 pages. 1960.

7. Notice of Copyright

8. Commercial Use of the Copyright Notice

9. Use of the Copyright Notice by Libraries

10. False Use of the Copyright Notice

STUDIES 11-13. 155 pages. 1960.

11. Divisibility of Copyrights

12. Joint Ownership of Copyrights

13. Works Made for Hire and on Commission

STUDIES 14-16. 135 pages. 1960.

14. Fair Use of Copyrighted Works

15. Photoduplication of Copyrighted Materials

by Libraries

16. Limitations on Performing Rights

STUDIES 17-19. 135 pages. 1960.

17. The Registration of Copyright

18. Authority of the Register of Copyrights to

Reject Applications for Registration

19. The Recordation of Copyright Assignments

and Licenses

STUDIES 20-21. 81 pages. 1960.

20. Deposit of Copyrighted Works

21. The Catalog of Copyright Entries
A4:2

STUDIES 22-25. 169 pages. 1960.

22. The Damage Provisions of the Copyright Law

23. The Operation of the Damage Provisions of the

Copyright Law: An Exploratory Study

24. Remedies Other Than Damages for Copyright

Infringement

25. Liability of Innocent Infringers of Copyright

STUDIES 26-28. 116 pages. 1961.

26. The Unauthorized Duplication of Sound Recordings

27. Copyright in Architectural Works

28. Copyright in Choreographic Works

STUDIES 29-31. 237 pages. 1961.

29. Protection of Unpublished Works

30. Duration of Copyright

31. Renewal of Copyright

STUDIES 32-34. 57 pages. 1961.

32. Protection of Works of Foreign Origin

33. Copyright in Government Publications

34. Copyright in Territories and Possessions of

the United States

STUDY 35. 73 pages. 1963.

35. The Manufacturing Clause of the U.S. Copyright

Law

II. Copyright Office Reports and Panel Discussions

Part 1. Register's Report, 1961

Part 2. Register's Report - Discussion and

Comments, 1963

Part 3. Preliminary Draft for Revised Copyright

Law with Discussion and Comments, 1964

Part 4. Preliminary Draft - Further Discussions

and Comments, 1964

Part 5. 1964 Revision Bill with Discussions and

Comments, 1965

Part 6. Supplemental Report of the Register, 1965

Draft Second Supplemental Report of the

Register, 1975

III. Legislative Hearings

1. 1965 Hearings before Subcommittee No. 3 of the

House Judiciary Committee. Serial No. 8, Pts.

1-3 (3 Volumes, with index)

2. 1965-1967 Hearings before the Subcommittee on

Patents, Trademarks & Copyrights of the Senate 

Committee on the Judiciary - specifically, the

following seven volumes:
A4:3

(i) August 18-20, 1965 on S. 1006

(ii) August 2-4 & 25, 1966 on S. 1006

(CATV)

(iii) March 15-17, 1967 on S. 597 ("Part 1")

(iv) March 20-21 & April 4, 1967 on S. 597

("Part 2")

(v) April 6, 11-12, 1967 on S. 597 ("Part 3")

(vi) April 28, 1967 on S. 597 ("Appendix")

(vii) [Combined] index of Hearings

3. July 31 and August 1, 1973 Hearings before the

Subcommittee on Patents, Trademarks & Copyrights

of the Senate Committee on the Judiciary

4. 1975 Hearings before the Subcommittee on Courts,

Civil Liberties & Administration of Justice of the

House Committee on the Judiciary (Serial No. 36)

(3 Volumes)

5. July 24, 1975 Hearings before the Subcommittee on

Patents, Trademarks & Copyrights of the Senate 

Committee on the Judiciary (Primarily Performance

Royalty)

IV. Legislative Reports

Conference Report. 94th Cong., 2d Sess., House

Report 94-1733. 1976

Report of the House Committee on the Judiciary.

94th Cong., 2d Sess., House Report 94-1476.

1976. Report together with Additional Views.

[NOTE: In connection with this report reference

must be made to both (a) the "corrections" printed

in the Congressional Record of September 21, 1976,

at pp. 10727-28. (Reprinted in Copyright Office

Announcement ML-130) and (b) additional corrections,

amplifications and modifications announced during

the House Floor Debate printed in the Congressional

Record of September 22, 1976. (Reprinted in Copyright Office announcement ML-132).

Report of the Senate Committee on the Judiciary.

94th Cong., 1st Sess., Calendar No. 460, Senate

Rept. 94-473. 1975. Report together with Additional Views.
A4:4

Report of the Senate Committee on Commerce. 93d

Cong., 2d Sess., Calendar No. 995, Senate Rept.

93-1035. 1974. Minority and Additional Views.

Report of the Senate Committee on the Judiciary.

93d Cong., 2d Sess., Calendar No 9A6, Senate

Rept. 93-933. 1974. Additional and Minority

Views. (Star Print).

Report of the House Committee on the Judiciary.

90th Cong., 1st Sess. House Report 83, 1967.

Report of the House Committee on the Judiciary,

89th Cong., 2nd Sess., House Rept. 2237. 1966.

V. Floor Debates

Relevant proceedings are reported in the Congressional

Record for:

September 22, 1976 (House) [Reprinted Copyright Office

Announcement ML-132].

September 30, 1976 (House & Senate) [Reprinted in

Copyright Office Announcement ML-133]

February 16-19, 1976 (Senate)

September 5, 6, and 9, 1974 (Senate)

April 6 and 11, 1967 (House)

*U.S. GOVERNMENT PRINTING OFFICE: 1979 0-281-C93/2815