Digital Law Online: Notice And Registration

It used to be a requirement that a copyright notice be included with a published work for copyright protection to attach to the work. Works protected under the 1909 Act required notice at the time of first publication, or copyright would be lost forever. The 1976 Act continued to require notice, but was somewhat forgiving if the notice was omitted. Since the United States joined the Berne Convention in 1989 and amended the Copyright Act, notice is optional.

II.C.1. Form of the Notice

Section 401 gives the requirements for a proper notice:

(a) General Provisions.– Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.

(b) Form of Notice.– If a notice appears on the copies, it shall consist of the following three elements:

(2) the year of first publication of the work; in the case of compilations, or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and

(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

(c) Position of Notice.– The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive. {FN34: 17 U.S.C. §401}

Sections 401 through 406, along with the Copyright Office regulations, give the various rules for copyright notices. And while notice is now optional, Section 401(e) indicates the advantage to the copyright owner of including proper notice:

If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2). {FN35: 17 U.S.C. §401(e)}

Section 504 has to do with statutory damages, and Section 504(c)(2) covers innocent infringement by the employee of a nonprofit educational institution, library, or public broadcasting station. But the penalties for somebody who is not an innocent infringer are much higher than those for an innocent infringer, so it is valuable to place a copyright notice on a work even though it is no longer required.

II.C.2. Registration of Copyright

As with notice, registration of a copyright is optional. Copyright protection exists from the moment of creation and fixation, regardless of notice and registration. But registration is required before any infringement suit can be filed for a domestic work, {FN36: 17 U.S.C. §411} and timely registration is required for certain remedies. {FN37: 17 U.S.C. §412} Registration is simple and inexpensive. You simply fill out a form and send it to the Copyright Office, along with two copies of the work and a $30 registration fee. Information regarding registration, and the necessary forms, can be found at the Copyright Office’s Web site:

http://www.loc.gov/copyright

Finally, to help build the collection of the Library of Congress, Section 407 requires that copies of published works be given at no cost to the Library. If the required deposit is not made, the Library can fine the copyright owner and purchase the work. The Librarian of Congress may exempt certain works, whose donation would work a hardship on the copyright owner, or can reduce the number of copies required from two to one.

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