NATIONAL INFORMATION INFRASTRUCTURE

5. NOTICE, DEPOSIT AND REGISTRATION

Prior to the United States accession to the Berne Convention and the concomitant amendments to the Copyright Act, a copyright notice was required on all publicly distributed copies or phonorecords of works. Omission of the notice could result in the loss of copyright protection for the work. However, in 1989, the use of a copyright notice became permissive rather than required.[1] Section 401(a) of the Copyright Act provides:

Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright ... may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.[2]

If a copyright notice is used, it generally must consist of three elements:

As a general rule, two copies of a published work must be deposited in the Copyright Office within three months of publication for the benefit of the Library of Congress.[4 ] The Register of Copyrights may exempt categories of works from the deposit requirements. The Register may also require only one copy of the work or allow alternative forms of deposit.[5] Although required by the Copyright Act, the deposit of copies is not a prerequisite to or condition of copyright protection. Failure to deposit copies of a work after a written demand by the Register of Copyrights, however, generally results in the imposition of a fine.[6]

Registration with the Copyright Office is permissive, rather than mandatory. It is not a prerequisite to the grant of exclusive rights.[7] It is, however, generally a prerequisite to the enforcement of those rights in court.[8] The copyright owner of a work (or the owner of any of the exclusive rights) may register the copyright in the work by depositing with the Copyright Office a completed application form, registration fee and a copy or copies of the work.[9] The deposit requirement under the Act may be fulfilled through the registration procedures.[10]

Although not required, registration may be advisable. A certificate of copyright registration constitutes prima facie evidence of the validity of the copyright and the facts stated in the certificate, if registration is made within five years of first publication.[11] In addition, certain remedies are available in infringement suits only if registration is made prior to the date of the infringement or within three months of first publication.[12]

The lack of notice and registration requirements may make it harder to differentiate between protected and unprotected works, including those in the public domain and those in which the author does not wish to claim copyright. It may also make it more difficult to identify the copyright owner. This has led some to suggest, at least with respect to works disseminated via computer networks, that one should be free to copy any work that does not contain a copyright notice and that registration should be required.

While these arguments may have some merit, the balance of interests has not changed since these issues were considered by Congress and the requirements were eliminated. Conditioning copyright protection on the affixation of copyright notices and/or registration would be inconsistent with our obligations under the Berne Convention.[13] Further, the benefits of utilizing Copyright Management Information should encourage copyright owners to include or affix information historically included in copyright notices, as well as additional useful information for consumers, such as the terms and conditions for use.

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Posted on 4/13/96 v1
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