Copyrights - 17 USC Section 405

01/19/04

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.

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).

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.

Last modified: April 19, 2006