The Copyright Notice Requirement

13th June, 2020 - 4:23 am Categories: Copyright 2 Comments

A copyright notice is a notice of statutorily prescribed form, placed on copies or phone records of a work that informs the public of the underlying claim to copyright ownership in a published work. When a work is published under the authority of the copyright owner, a notice of copyright may be placed on all publicly distributed copies or phone records. The use of the notice is the responsibility of the copyright owner and does not require permission from, or registration with, the Copyright Office. However, the use of copyright notice is not mandatory. An author of a work owns the copyright to his or her work, simply by virtue of creating the work and the copyright protection of such work is not conditioned on displaying a notice or any such formalities.

A Copyright Notice generally contains the following elements that appear as a single continuous statement:

• The symbol of Copyright (letter c in a circle) or the word “Copyright” or the abbreviation copr.
• The year of the first publication of the work.
• The name of the owner of the copyright, or an abbreviation by which the name can be recognized, or a generally known alternative designation of owner

Examples • © 1978 John Doe • Copyright 1980 John Doe • Copr. 1982 John Doe

The copyright notice hasn’t been a necessary requirement in published works in the majority of the countries, courtesy of the Berne Convention on Copyright. In the United States, however, a Copyright notice was mandatory for all work published before the 1^st of March 1989. In case of a mistake in the notice or omission of the notice, the published work lost copyright protection. The Copyright owner was required to place an effective notice on all publicly distributed “visually perceptible” copies. A visually perceptible copy is one that can be seen or read, either directly or with the aid of a machine.

However, since the 1^st of March 1989, after the US signed on to the Berne Convention, a copyright notice was made optional, and works created post this date need not necessarily provide copyright notice information for copyright protection. As per the “Circular 3- Copyright Notice” of the United States Copyright Office, providing a Copyright Notice is no more mandatory and is only optional. However, even though it is no longer legally required to use the copyright notice, affixing a Copyright Notice has its advantages and is generally recommended since it adds n extra layer of protection by making sure that anyone who views a work knows that the work is copyrighted and in the case of a published work, a notice may prevent a defendant in a copyright infringement action from attempting to limit his or her liability for damages or injunctive relief based on an innocent infringement defense. Using a copyright notice also carries the following benefits:

• The notice makes potential users aware that copyright is claimed in the work.
• In the case of a published work, a notice may prevent a defendant in a copyright infringement action from attempting to limit his or her liability for damages or injunctive relief based on an innocent infringement defense.
• The notice identifies the copyright owner at the time the work was first published for parties seeking permission to use the work.
• The notice identifies the year of first publication, which may be used to determine the term of copyright protection in the case of an anonymous work, a pseudonymous work, or a work made for hire.
• Notice may prevent the work from becoming an orphan work by identifying the copyright owner and specifying the term of the copyright.

A copyright notice does not actually protect your work; the mere act of creating it does that. Instead, it acts as a way to hang out your shingle and let the world know that your work exists, that you own it, and permission must be granted if someone wishes to use it. There is no one form or set a standard of the copyright notice and it is up to the owner of the work to use any form of notice they wish to put, as long as the 3 elements are provided. In order to put a copyright notice, it is necessary to register the copyright and have ownership rights in the work. Copyright is the right of the author of the work or his/her assignees. There have been serious doubts regarding whose name would appear in the copyright notice, author or the owner. A “work for hire” is a work generated by an employee within the scope of his employment, and in that case, the employer is deemed to be the author and it owns the copyright. In case of a ‘work for hire’ arrangement, the ownership of the copyright would be with the Principal or Employer rather than with the author of the work. Hence, in such a circumstance, the former would be named in the copyright notice. (Jim Marshall Photography, LLC v. John Varvatos of California, 109 U.S.P.Q. 2d 1114) Unlike employees of the company, third party programmers and consultants are ordinarily presumed to own the copyrights in the programs that they create, even if another party paid for the development. A program created by a free-lance programmer may still be a work for hire, however, if there is a written agreement to that effect in which case the party commissioning the work owns the copyright. It is therefore important for you to engage consultants to create programs to ensure that a written agreement is signed by all parties that expressly provide that the program is a work for hire and is owned by your company.

The majority of the world does not require a notice to be affixed with a copyrighted work to protect such work, and hence, there’s no real rule or format as to the contents of it. The important thing is to convey all of the information that others would expect from a copyright notice and the three elements mentioned above should relay is fine. However, it is also to bear in mind that the elements don’t have to be in the copyright notice itself, as long as the information is provided somewhere on the work.

Author: Sudhansu Sahoo, Legal Associate, at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at sudhanshu@khuranaandkhurana.com.