§ 405. — Notice of copyright: Omission of notice on certain copies and phonorecords.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC405]
TITLE 17--COPYRIGHTS
CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION
Sec. 405. Notice of copyright: Omission of notice on certain
copies and phonorecords
(a) Effect of Omission on Copyright.--With respect to copies and
phonorecords publicly distributed by authority of the copyright owner
before the effective date of the Berne Convention Implementation Act of
1988, the omission of the copyright notice described in sections 401
through 403 from copies or phonorecords publicly distributed by
authority of the copyright owner does not invalidate the copyright in a
work if--
(1) the notice has been omitted from no more than a relatively
small number of copies or phonorecords distributed to the public; or
(2) registration for the work has been made before or is made
within five years after the publication without notice, and a
reasonable effort is made to add notice to all copies or
phonorecords that are distributed to the public in the United States
after the omission has been discovered; or
(3) the notice has been omitted in violation of an express
requirement in writing that, as a condition of the copyright owner's
authorization of the public distribution of copies or phonorecords,
they bear the prescribed notice.
(b) Effect of Omission on Innocent Infringers.--Any person who
innocently infringes a copyright, in reliance upon an authorized copy or
phonorecord from which the copyright notice has been omitted and which
was publicly distributed by authority of the copyright owner before the
effective date of the Berne Convention Implementation Act of 1988,
incurs no liability for actual or statutory damages under section 504
for any infringing acts committed before receiving actual notice that
registration for the work has been made under section 408, if such
person proves that he or she was misled by the omission of notice. In a
suit for infringement in such a case the court may allow or disallow
recovery of any of the infringer's profits attributable to the
infringement, and may enjoin the continuation of the infringing
undertaking or may require, as a condition for permitting the
continuation of the infringing undertaking, that the infringer pay the
copyright owner a reasonable license fee in an amount and on terms fixed
by the court.
(c) Removal of Notice.--Protection under this title is not affected
by the removal, destruction, or obliteration of the notice, without the
authorization of the copyright owner, from any publicly distributed
copies or phonorecords.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2578; Pub.
L. 100-568, Sec. 7(e), Oct. 31, 1988, 102 Stat. 2858; Pub. L. 105-80,
Sec. 12(a)(10), Nov. 13, 1997, 111 Stat. 1535.)
Historical and Revision Notes
house report no. 94-1476
Effect of Omission on Copyright Protection. The provisions of
section 405(a) make clear that the notice requirements of sections 401,
402, and 403 are not absolute and that, unlike the law now in effect,
the outright omission of a copyright notice does not automatically
forfeit protection and throw the work into the public domain. This not
only represents a major change in the theoretical framework of American
copyright law, but it also seems certain to have immediate practical
consequences in a great many individual 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 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 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 [section 21 of former title 21].
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 his 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
authorized publication of the work, the notice requirements would not be
met if copies or phonorecords are publicly distributed without a notice,
even if he expected a notice to be used. However, if the copyright owner
authorized publication only on the express condition that all copies or
phonorecords bear a prescribed notice, the provisions of section 401 or
402 and of section 405 would not apply since the publication itself
would not be authorized. This principle is stated directly in section
405(a)(3).
Effect of Omission on Innocent Infringers. In addition to the
possibility that copyright protection will be forfeited under section
405(a)(2) if the notice is omitted, a second major inducement to use of
the notice is found in subsection (b) of section 405. That provision,
which limits the rights of a copyright owner against innocent infringers
under certain circumstances, would be applicable whether the notice has
been omitted from a large number or from a ``relatively small number''
of copies. The general postulates underlying the provision are that a
person acting in good faith and with no reason to think otherwise should
ordinarily be able to assume that a work is in the public domain if
there is no notice on an authorized copy or phonorecord and that, if he
relies on this assumption, he should be shielded from unreasonable
liability.
Under section 405(b) 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 was misled by the omission,
is shielded from liability for actual or statutory damages with respect
to ``any infringing acts committed before receiving actual notice'' of
registration. Thus, where the infringement is completed before actual
notice has been served--as would be the usual case with respect to
relatively minor infringements by teachers, librarians, journalists, and
the like--liability, if any, would be limited to the profits the
infringer realized from the act of infringement. On the other hand,
where the infringing enterprise is one running over a period of time,
the copyright owner would be able to seek an injunction against
continuation of the infringement, and to obtain full monetary recovery
for all infringing acts committed after he had served notice of
registration. Persons who undertake major enterprises of this sort
should check the Copyright Office registration records before starting,
even where copies have been published without notice.
The purpose of the second sentence of subsection (b) is to give the
courts broad discretion to balance the equities within the framework of
section 405 [this section]. Where an infringer made profits from
infringing acts committed innocently before receiving notice from the
copyright owner, the court may allow or withhold their recovery in light
of the circumstances. The court may enjoin an infringement or may permit
its continuation on condition that the copyright owner be paid a
reasonable license fee.
Removal of Notice by Others. Subsection (c) of section 405 involves
the situation arising when, following an authorized publication with
notice, someone further down the chain of commerce removes, destroys, or
obliterates the notice. The courts dealing with this problem under the
present law, especially in connection with copyright notices on the
selvage of textile fabrics, have generally upheld the validity of a
notice that was securely attached to the copies when they left the
control of the copyright owner, even though removal of the notice at
some later stage was likely. This conclusion is incorporated in
subsection (c).
References in Text
The effective date of the Berne Convention Implementation Act of
1988, referred to in subsecs. (a) and (b), is Mar. 1, 1989, see section
13 of Pub. L. 100-568, set out as an Effective Date of 1988 Amendment
note under section 101 of this title.
Amendments
1997--Subsec. (b). Pub. L. 105-80 substituted ``condition for
permitting the continuation'' for ``condition or permitting the
continuation''.
1988--Pub. L. 100-568, Sec. 7(e)(3), substituted ``notice on certain
copies and phonorecords'' for ``notice'' in section catchline.
Subsec. (a). Pub. L. 100-568, Sec. 7(e)(1), substituted ``With
respect to copies and phonorecords publicly distributed by authority of
the copyright owner before the effective date of the Berne Convention
Implementation Act of 1988, the omission of the copyright notice
described in'' for ``The omission of the copyright notice prescribed
by''.
Subsec. (b). Pub. L. 100-568, Sec. 7(e)(2), substituted ``omitted
and which was publicly distributed by authority of the copyright owner
before the effective date of the Berne Convention Implementation Act of
1988,'' for ``omitted,''.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any cause
of action arising under this title before such date being governed by
provisions in effect when cause of action arose, see section 13 of Pub.
L. 100-568, set out as a note under section 101 of this title.
Section Referred to in Other Sections
This section is referred to in sections 101, 406 of this title.
