cases. Under the proposed law a work published without any copyright notice will still be subject to statutory protection for at least 5 years, whether the omission was partial or total, unintentional or deliberate.
Under the general scheme of the bill, statutory copyright protection is secured automatically when a work is created, and is not lost when the work is published, even if the copyright notice is omitted entirely. Subsection (a) of section 405 provides that omission of notice, whether intentional or unintentional, does not invalidate the copright if either of two conditions is met:
- (1) if “no more than a relatively small number” of copies or phonorecords have been publicly distributed without notice; or
- (2) if registration for the work has already been made, or is made within 5 years after the publication without notice, and a reasonable effort is made to add notice to copies or phonorecords publicly distributed in the United States after the omission is discovered.
Thus, if notice is omitted from more than a “relatively small number” of copies or phonorecords, copyright is not lost immediately, but the work will go into the public domain if no effort is made to correct the error or if the work is not registered within 5 years.
Section 405(a) takes a middle-ground approach in an effort to encourage use of a copyright notice without causing unfair and unjustifiable forfeitures on technical grounds. Clause (1) provides that, as long as the omission is from “no more than a relatively small number of copies or phonorecords,” there is no effect upon the copyright owner’s rights except in the case of an innocent infringement covered by section 405(b); there is no need for registration or for efforts to correct the error if this clause is applicable. The phrase “relatively small number” is intended to be less restrictive than the phrase “a particular copy or copies” now in section 21 of the present law.
Under clause (2) of subsection (a), the first condition for curing an omission from a larger number of copies is that registration be made before the end of 5 years from the defective publication. This registration may have been made before the omission took place or before the work had been published in any form and, since the reasons for the omission have no bearing on the validity of copyright, there would be no need for the application to refer to them. Some time limit for registration is essential and the 5-year period is reasonable and consistent with the period provided in section 410(c).
The second condition established by clause (2) is that the copyright owner make a “reasonable effort,” after discovering the error, to add the notice to copies or phonorecords distributed thereafter. This condition is specifically limited to copies or phonorecords publicly distributed in the United States, since it would be burdensome and impractical to require an American copyright owner to police the activities of foreign licensees in this situation.
The basic notice requirements set forth in sections 401(a) and 402(a) are limited to cases where a work is published “by authority of the copyright owner” and, in prescribing the effect of omission of notice, section 405(a) refers only to omission “from copies or phonorecords publicly distributed by authority of the copyright owner.” The intention behind this language is that, where the copyright owner author-