The Copyright Law's 'Publish or Perish' Requirement

Author:Mr Leonard DuBoff
Profession:The Duboff Law Group

by Leonard D. DuBoff, 2002

The Copyright Revision Act of 1976 made significant changes in copyright fundamentals. The law affected everything from the method of creating copyright and the rights covered, to the method of enforcing and protecting the copyright.

The preexisting statute, known as the 1909 Act, had strict and technical requirements for creating federal copyright protection. Under that body of law, a copyrightable work was protected by a so-called common-law copyright until the work was published. In fact, copyrightable works were actually protected by state laws, and those laws were not uniform. Publication was defined as an unrestricted public display, sale or the like. The statute provided that once a publication occurred, the proprietor would enjoy the protection of the federal law if the work was published with the proper copyright notice affixed to it. A publication without the proper copyright notice caused the work to become part of the public domain, though there was a limited exception for certain technical problems, such as having the notice omitted by a publisher who had contractually agreed to include the notice.

The Copyright Revision Act of 1976 liberalized the law and changed the rules for obtaining federal protection. Under the revised statute, any original work of authorship which is put in a tangible form is automatically protected by the federal law before publication. In order to retain federal protection after publication, the law required the work to be published with the proper copyright notice, though the statute contains safe harbors for works published without notice in three categories:

(1) If notice was omitted from "a relatively small number of copies or phonorecords distributed to the public";

(2) If the work was registered within five years after the publication without notice and if a reasonable effort was made to add notice to all copies or phonorecords distributed in the United States after the omission was discovered; or

(3) If the omission of notice was "in violation of an express requirement in writing" that the copies or phonorecords bear the prescribed notice.

Since March 1, 1989, no notice has been required due to legislation enacted in connection with the United States becoming a party to the Berne Convention. It is, however, advantageous to use the notice since use of the copyright notice will prevent copiers from alleging that they relied in good faith on the fact that no...

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