Notes on 17 U.S.C. § 304 : US Code - Notes

Search Notes on 17 U.S.C. § 304 : US Code - Notes

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2573;
Pub. L. 102-307, title I, Sec. 102(a), (d), June 26, 1992, 106
Stat. 264, 266; Pub. L. 105-80, Sec. 12(a)(9), Nov. 13, 1997, 111
Stat. 1535; Pub. L. 105-298, title I, Secs. 102(d)(1), 103, Oct.
27, 1998, 112 Stat. 2827, 2829; Pub. L. 107-273, div. C, title III,
Sec. 13210(10), Nov. 2, 2002, 116 Stat. 1910.)
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
The arguments in favor of lengthening the duration of copyright
apply to subsisting as well as future copyrights. The bill's basic
approach is to increase the present 56-year term to 75 years in the
case of copyrights subsisting in both their first and their renewal
terms.
Copyrights in Their First Term. Subsection (a) of section 304
reenacts and preserves the renewal provision, now in Section 24 of
the statute [section 24 of former title 17], for all of the works
presently in their first 28-year term. A great many of the present
expectancies in these cases are the subject of existing contracts,
and it would be unfair and immensely confusing to cut off or alter
these interests. Renewal registration will be required during the
28th year of the copyright but the length of the renewal term will
be increased from 28 to 47 years.
Although the bill preserves the language of the present renewal
provision without any change in substance, the Committee intends
that the reference to a "posthumous work" in this section has the
meaning given to it in Bartok v. Boosey&Hawkes, Inc., 523 F.2d
941 (2d Cir. 1975) - one as to which no copyright assignment or
other contract for exploitation of the work has occurred during an
author's lifetime, rather than one which is simply first published
after the author's death.
Copyrights in Their Renewal Term. Renewed copyrights that are
subsisting in their second term at any time during the period
between December 31, 1976, and December 31, 1977, inclusive, would
be extended under section 304(b) to run for a total of 75 years.
This provision would add another 19 years to the duration of any
renewed copyright whose second term started during the 28 years
immediately preceding the effective date of the act (January 1,
1978). In addition, it would extend by varying lesser amounts the
duration of renewal copyrights already extended under Public Laws
87-668, 89-142, 90-141, 90-416, 91-147, 91-555, 92-170, 92-566, and
93-573, all of which would otherwise expire on December 31, 1976.
The subsection would also extend the duration of renewal copyrights
whose second 28-year term is scheduled to expire during 1977. In
none of these cases, however, would the total terms of copyright
for the work be longer than 75 years.
Subsection (b) also covers the special situation of a subsisting
first-term copyright that becomes eligible for renewal registration
during the year before the act comes into effect. If a renewal
registration is not made before the effective date [Jan. 1, 1978],
the case is governed by the provisions of section 304(a) [subsec.
(a) of this section]. If a renewal registration is made during the
year before the new law takes effect, however, the copyright would
be treated as if it were already subsisting in its second term and
would be extended to the full period of 75 years without the need
for further renewal.
Termination of Grants Covering Extended Term. An issue underlying
the 19-year extension of renewal terms under both subsections (a)
and (b) of section 304 [subsecs. (a) and (b) of this section] is
whether, in a case where their rights have already been
transferred, the author or the dependents of the author should be
given a chance to benefit from the extended term. The arguments for
granting rights of termination are even more persuasive under
section 304 than they are under section 203; the extended term
represents a completely new property right, and there are strong
reasons for giving the author, who is the fundamental beneficiary
of copyright under the Constitution, an opportunity to share in it.
Subsection (c) of section 304 is a close but not exact
counterpart of section 203. In the case of either a first-term or
renewal copyright already subsisting when the new statute becomes
effective [Jan. 1, 1978], any grant of rights covering the renewal
copyright in the work, executed before the effective date [Jan. 1,
1978], may be terminated under conditions and limitations similar
to those provided in section 203. Except for transfers and licenses
covering renewal copyrights already extended under Public Laws 87-
668, 89-142, 90-141, 90-416, 91-147, 91-555, 92-170, 92-566, and
93-573, which would become subject to termination immediately upon
the coming into effect of the revised law, the 5-year period during
which termination could be made effective would start 56 years
after copyright was originally secured.
The bill distinguishes between the persons who can terminate a
grant under section 203 and those entitled to terminate a grant
covering an extended term under section 304. Instead of being
limited to transfers and licenses executed by the author, the right
of termination under section 304(c) also extends to grants executed
by those beneficiaries of the author who can claim renewal under
the present law: his or her widow or widower, children, executors,
or next of kin.
There is good reason for this difference. Under section 203, an
author's widow or widower and children are given rights of
termination if the author is dead, but these rights apply only to
grants by the author, and any effort by a widow, widower, or child
to transfer contingent future interests under a termination would
be ineffective. In contrast, under the present renewal provisions,
any statutory beneficiary of the author can make a valid transfer
or license of future renewal rights, which is completely binding if
the author is dead and the person who executed the grant turns out
to be the proper renewal claimant. Because of this, a great many
contingent transfers of future renewal rights have been obtained
from widows, widowers, children, and next of kin, and a substantial
number of these will be binding. After the present 28-year renewal
period has ended, a statutory beneficiary who has signed a
disadvantageous grant of this sort should have the opportunity to
reclaim the extended term.
As explained above in connection with section 203, the bill
adopts the principle that, where a transfer or license by the
author is involved, termination may be effected by a per stirpes
majority of those entitled to terminate, and this principle also
applies to the ownership of rights under a termination and to the
making of further grants of reverted rights. In general, this
principle has also been adopted with respect to the termination of
rights under an extended renewal copyright in section 304, but with
several differences made necessary by the differences between the
legal status of transfers and licenses made after the effective
date of the new law [Jan. 1, 1978] (governed by section 203) and
that of grants of renewal rights made earlier and governed by
section 304(c). The following are the most important distinctions
between the termination rights under the two sections:
1. Joint Authorship. - Under section 304, a grant of renewal
rights executed by joint authors during the first term of
copyright would be effective only as to those who were living at
the time of renewal; where any of them are dead, their statutory
beneficiaries are entitled to claim the renewal independently as
a new estate. It would therefore be inappropriate to impose a
requirement of majority action with respect to transfers executed
by two or more joint authors.
2. Grants Not Executed by Author. - Section 304(c) adopts the
majority principle underlying the amendments of section 203
[section 203 of this title] with respect to the termination
rights of a dead author's widow or widower and children. There is
much less reason, as a matter of policy, to apply this principle
in the case of transfers and licenses of renewal rights executed
under the present law by the author's widow, widower, children,
executors, or next of kin, and the practical arguments against
doing so are conclusive. It is not clear how the shares of a
class of renewal beneficiaries are to be divided under the
existing law, and greater difficulties would be presented if any
attempt were made to apply the majority principle to further
beneficiaries in cases where one or more of the renewal
beneficiaries are dead. Therefore, where the grant was executed
by a person or persons other than the author, termination can be
effected only by the unanimous action of the survivors of those
who executed it.
3. Further Grants. - The reason against adopting a principle of
majority action with respect to the right to terminate grants by
joint authors and grants not executed by the author apply equally
with respect to the right to make further grants under section
304(c). The requirement for majority action in clause (6)(C) is
therefore confined to cases where the rights under a grant by the
author have reverted to his or her widow or widower, or children,
or both. Where the extended term reverts to joint authors or to a
class of renewal beneficiaries who have joined in executing a
grant, their rights would be governed by the general rules of
tenancy in common; each coowner would have an independent right
to sell his share, or to use or license the work subject to an
accounting.
Nothing contained in this section or elsewhere in this
legislation is intended to extend the duration of any license,
transfer, or assignment made for a period of less than fifty-six
years. If, for example, an agreement provides an earlier
termination date or lesser duration, or if it allows the author the
right of cancelling or terminating the agreement under certain
circumstances, the duration is governed by the agreement. Likewise,
nothing in this section or legislation is intended to change the
existing state of the law of contracts concerning the circumstances
in which an author may terminate a license, transfer or assignment.
Section 304(c)(6)(E) provides that, unless and until termination
is effected under this section, the grant, "if it does not provide
otherwise," continues for the term of copyright. This section means
that, if the agreement does not contain provisions specifying its
term or duration, and the author has not terminated the agreement
under this section, the agreement continues for the term of the
copyright, subject to any right of termination under circumstances
which may be specified therein. If, however, an agreement does
contain provisions governing its duration - for example, a term of
sixty years - and the author has not exercised his or her right of
termination under the statute, the agreement will continue
according to its terms - in this example, for only sixty years. The
quoted language is not to be construed as requiring agreements to
reserve the right of termination.
REFERENCES IN TEXT
The Sonny Bono Copyright Term Extension Act, referred to in
subsecs. (b) and (d), is title I of Pub. L. 105-298, Oct. 27, 1998,
112 Stat. 2827. The effective date of the Act is the date of
enactment of Pub. L. 105-298, which was approved Oct. 27, 1998. For
complete classification of this Act to the Code, see Short Title of
1998 Amendments note set out under section 101 of this title and
Tables.
AMENDMENTS
2002 - Subsec. (c)(2)(A) to (C). Pub. L. 107-273, in subpars. (A)
to (C), substituted "The" for "the" and, in subpars. (A) and (B),
substituted period for semicolon at end.
1998 - Subsec. (a)(1)(B), (C). Pub. L. 105-298, Sec.
102(d)(1)(A)(i), substituted "67" for "47" in concluding
provisions.
Subsec. (a)(2)(A), (B). Pub. L. 105-298, Sec. 102(d)(1)(A)(ii),
substituted "67" for "47" in introductory provisions.
Subsec. (a)(3)(A)(i), (B). Pub. L. 105-298, Sec.
102(d)(1)(A)(iii), substituted "67" for "47".
Subsec. (b). Pub. L. 105-298, Sec. 102(d)(1)(B), amended heading
and text of subsec. (b) generally. Prior to amendment, text read as
follows: "The duration of any copyright, the renewal term of which
is subsisting at any time between December 31, 1976, and December
31, 1977, inclusive, or for which renewal registration is made
between December 31, 1976, and December 31, 1977, inclusive, is
extended to endure for a term of seventy-five years from the date
copyright was originally secured."
Subsec. (c)(2). Pub. L. 105-298, Sec. 103(1), struck out "by his
widow or her widower and his or her children or grandchildren"
after "exercised," in introductory provisions.
Subsec. (c)(2)(D). Pub. L. 105-298, Sec. 103(2), added subpar.
(D).
Subsec. (c)(4)(A). Pub. L. 105-298, Sec. 102(d)(1)(C), inserted
"or, in the case of a termination under subsection (d), within the
five-year period specified by subsection (d)(2)," before "and the
notice".
Subsec. (d). Pub. L. 105-298, Sec. 102(d)(1)(D), added subsec.
(d).
1997 - Subsec. (c). Pub. L. 105-80 substituted "subsection
(a)(1)(C)" for "the subsection (a)(1)(C)" in introductory
provisions.
1992 - Subsec. (a). Pub. L. 102-307, Sec. 102(a), amended subsec.
(a) generally. Prior to amendment, subsec. (a) read as follows:
"Copyrights in Their First Term on January 1, 1978. - Any
copyright, the first term of which is subsisting on January 1,
1978, shall endure for twenty-eight years from the date it was
originally secured: Provided, That in the case of any posthumous
work or of any periodical, cyclopedic, or other composite work upon
which the copyright was originally secured by the proprietor
thereof, or of any work copyrighted by a corporate body (otherwise
than as assignee or licensee of the individual author) or by an
employer for whom such work is made for hire, the proprietor of
such copyright shall be entitled to a renewal and extension of the
copyright in such work for the further term of forty-seven years
when application for such renewal and extension shall have been
made to the Copyright Office and duly registered therein within one
year prior to the expiration of the original term of copyright: And
provided further, That in the case of any other copyrighted work,
including a contribution by an individual author to a periodical or
to a cyclopedic or other composite work, the author of such work,
if still living, or the widow, widower, or children of the author,
if the author be not living, or if such author, widow, widower, or
children be not living, then the author's executors, or in the
absence of a will, his or her next of kin shall be entitled to a
renewal and extension of the copyright in such work for a further
term of forty-seven years when application for such renewal and
extension shall have been made to the Copyright Office and duly
registered therein within one year prior to the expiration of the
original term of copyright: And provided further, That in default
of the registration of such application for renewal and extension,
the copyright in any work shall terminate at the expiration of
twenty-eight years from the date copyright was originally secured."
Subsec. (c). Pub. L. 102-307, Sec. 102(d), substituted
"subsection (a)(1)(C)" for "second proviso of subsection (a)" in
introductory provisions.
EFFECTIVE DATE OF 1992 AMENDMENT
Amendment by Pub. L. 102-307 effective June 26, 1992, but
applicable only to copyrights secured between January 1, 1964, and
December 31, 1977, and not affecting court proceedings pending on
June 26, 1992, with copyrights secured before January 1, 1964,
governed by section 304(a) of this title as in effect on the day
before June 26, 1992, except each reference to forty-seven years in
such provisions deemed to be 67 years, see section 102(g) of Pub.
L. 102-307, as amended, set out as a note under section 101 of this
title.
EFFECTIVE DATE
Subsec. (b) of this section effective Oct. 19, 1976, see section
102 of Pub. L. 94-553, set out as a note preceding section 101 of
this title.
LEGAL EFFECT OF RENEWAL OF COPYRIGHT UNCHANGED
Section 102(c) of Pub. L. 102-307, as amended by Pub. L. 105-298,
title I, Sec. 102(d)(2)(A), Oct. 27, 1998, 112 Stat. 2828, provided
that: "The renewal and extension of a copyright for a further term
of 67 years provided for under paragraphs (1) and (2) of section
304(a) of title 17, United States Code[,] shall have the same
effect with respect to any grant, before the effective date of the
Sonny Bono Copyright Term Extension Act [Oct. 27, 1998], of a
transfer or license of the further term as did the renewal of a
copyright before the effective date of the Sonny Bono Copyright
Term Extension Act under the law in effect at the time of such
grant."
AD INTERIM COPYRIGHTS SUBSISTING OR CAPABLE OF BEING SECURED UNDER
PREDECESSOR PROVISIONS
Section 107 of Pub. L. 94-553 provided that: "In the case of any
work in which an ad interim copyright is subsisting or is capable
of being secured on December 31, 1977, under section 22 of title 17
as it existed on that date, copyright protection is hereby extended
to endure for the term or terms provided by section 304 of title 17
as amended by the first section of this Act [this section]."
COPYRIGHT GRANTED TO "SCIENCE AND HEALTH WITH KEY TO THE
SCRIPTURES" FOR TERM OF 75 YEARS
Private Law 92-60, Dec. 15, 1971, 85 Stat. 857, provided: "That,
any provision of law to the contrary notwithstanding, copyright is
hereby granted to the trustees under the will of Mary Baker Eddy,
their successors, and assigns, in the work 'Science and Health with
Key to the Scriptures' (entitled also in some editions 'Science and
Health' or 'Science and Health; with a Key to the Scriptures'), by
Mary Baker Eddy, including all editions thereof in English and
translation heretofore published, or hereafter published by or on
behalf of said trustees, their successors or assigns, for a term of
seventy-five years from the effective date of this Act [Dec. 15,
1971] or from the date of first publication, whichever is later.
All copies of the protected work hereafter published are to bear
notice of copyright, and all new editions hereafter published are
to be registered in the Copyright Office, in accordance with the
provisions of title 17 of the United States Code or any revision or
recodification thereof. The copyright owner shall be entitled to
all rights and remedies provided to copyright owners generally by
law: Provided, however, That no liability shall attach under this
Act for lawful uses made or acts done prior to the effective date
of this Act in connection with said work, or in respect to the
continuance for one year subsequent to such date of any business
undertaking or enterprise lawfully undertaken prior to such date
involving expenditure or contractual obligation in connection with
the exploitation, production, reproduction or circulation of said
work. This Act shall be effective upon enactment."
EXTENSION OF RENEWAL TERMS UNDER PRIOR LAW
Pub. L. 93-573, title I, Sec. 104, Dec. 31, 1974, 88 Stat. 1873,
provided that in any case in which the renewal term of a copyright
subsisting in any work on Dec. 31, 1974, or the term thereof as
extended by Public Law 87-668, by Public Law 89-142, by Public Law
90-141, by Public Law 90-416, by Public Law 91-417, by Public Law
91-555, by Public Law 92-170, or by Public Law 92-556 (or by all or
certain of said laws) [set out below], would expire prior to Dec.
31, 1976, such term was continued until Dec. 31, 1976.
Pub. L. 92-566, Oct. 25, 1972, 86 Stat. 1181, provided that in
any case in which the renewal term of a copyright subsisting in any
work on Oct. 25, 1972, or the term thereof as extended by Public
Law 87-668, by Public Law 89-142, by Public Law 90-141, by Public
Law 90-416, by Public Law 91-147, by Public Law 91-555, or by
Public Law 92-170 (or by all or certain of said laws) [set out
below], would expire prior to Dec. 31, 1974, such term was
continued until Dec. 31, 1974.
Pub. L. 92-170, Nov. 24, 1971, 85 Stat. 490, provided that in any
case in which the renewal term of a copyright subsisting in any
work on Nov. 24, 1971, or the term thereof as extended by Public
Law 87-668, by Public Law 89-142, by Public Law 90-141, by Public
Law 90-416, by Public Law 91-147, or by Public Law 91-555 (or by
all or certain of said laws), would expire prior to Dec. 31, 1972,
such term was continued until Dec. 31, 1972.
Pub. L. 91-555, Dec. 17, 1970, 84 Stat. 1441, provided that in
any case in which the renewal term of a copyright subsisting in any
work on Dec. 17, 1970, or the term thereof as extended by Public
Law 87-668, by Public Law 89-442 [89-142], by Public Law 90-141, by
Public Law 90-416, or by Public Law 91-147 (or by all or certain of
said laws) [set out below], would expire prior to Dec. 31, 1971,
such term was continued until Dec. 31, 1971.
Pub. L. 91-147, Dec. 16, 1969, 83 Stat. 360, provided that in any
case in which the renewal term of a copyright subsisting in any
work on Dec. 16, 1969, or the term thereof as extended by Public
Law 87-668, by Public Law 89-142, by Public Law 90-141, or by
Public Law 90-416 (or by all or certain of said laws) [set out
below], would expire prior to Dec. 31, 1970, such term was
continued until Dec. 31, 1970.
Pub. L. 90-416, July 23, 1968, 82 Stat. 397, provided that in any
case in which the renewal term of a copyright subsisting in any
work on July 23, 1968, or the term thereof as extended by Public
Law 87-668, by Public Law 89-142, or by Public Law 90-141 (or by
all or certain of said laws) [set out below], would expire prior to
Dec. 31, 1969, such term was continued until Dec. 31, 1969.
Pub. L. 90-141, Nov. 16, 1967, 81 Stat. 464, provided that in any
case in which the renewal term of a copyright subsisting in any
work on Nov. 16, 1967, or the term thereof as extended by Public
Law 87-668, or by Public Law 89-142 (or by either or both of said
laws) [set out below], would expire prior to Dec. 31, 1968, such
term was continued until Dec. 31, 1968.
Pub. L. 89-142, Aug. 28, 1965, 79 Stat. 581, provided that in any
case in which the renewal term of a copyright subsisting in any
work on Aug. 28, 1965, or the term thereof as extended by Public
Law 87-668 [set out below], would expire prior to Dec. 31, 1967,
such term was continued until Dec. 31, 1967.
Pub. L. 87-668, Sept. 19, 1962, 76 Stat. 555, provided that in
any case in which the renewal term of a copyright subsisting in any
work on Sept. 19, 1962, would expire prior to Dec. 31, 1965, such
term was continued until Dec. 31, 1965.