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Omission of Notice Or Error in Notice

The United State’s signing of the Berne Convention made copyright notice optional for all works published after March 1, 1989.  Before that, there were strict rules and corrective measures as to omissions or errors in notice. Earlier provisions provided that an applicant could cure any omission or error in notice within five years of publication of a work.  These provisions are technically still the law, but are limited by the the United State’s adoption of the Berne Convention which made copyright notice optional for all works first published on or after March 1, 1989.  The provisions relating to corrective measures upon any omission or error in copyright come into play for the defense of innocent infringement, where the question of proper notice may be a factor to determine damages in infringement actions.

“Omission of notice” is publishing  work without a copyright notice. Some errors in copyright notice are considered the same as omission of notice or publishing that work without a notice.  Such errors are: i) A notice that does not contain the symbol © (the letter C in a circle), or the word “Copyright” or the abbreviation “Copr.”; or, if the work is a sound recording, if it does not have the symbol of the letter P in a circle on it; ii) a notice dated more than one year later than the date of its first publication; iii) a notice without a name or date that could reasonably be considered part of the notice; iv) a notice that lacks the statement required for works consisting preponderantly of U. S. government material; and v) a notice located such that it does not give reasonable notice of the claim of copyright.

For works published after March 1, 1989 the omission of notice does not affect copyright protection.  For works published between January 1,1978 and March 1, 1989 no corrective steps for omission of notice is required if: i)The notice is omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or ii) the omission violated an express written requirement that the published copies or phonorecords bear the prescribed notice.

Where there was an omission of copyright notice in works published before March 1, 1989, if the copyright was to be preserved: The work should have been registered before it was published in any form or before the omission occurred, or it must have been registered within five years after the date of publication without notice; and the copyright owner must have made a reasonable effort to add the notice to all copies or phonorecords that were distributed to the public in the United States after the omission was discovered.

If these corrective steps were not taken in time, the work went into the public domain in the United States five years after its publication. Once the copy of work published before March1, 1989, goes to the public domain for such omission of notice, it loses all U.S. Copyright Protection and it cannot be restored.

Errors in copyright notice may occur in the year or name accompanying it.   Where copyright duration depends on the date of first publication and the year given in the notice is earlier than the actual publication date, copyright protection may be shortened by beginning the term on the date in the notice.

When the person named in copyright notice is not the owner of copyright, the error may be corrected by registering the work in the name of the true owner; or recording a document in the Copyright Office executed by the person named in the notice showing the correct ownership.  If such a correction is not made, anyone who innocently infringes the copyright and who is able to prove that he or she was misled by the notice and obtained a transfer of license from the person named in the notice may have a complete defense against the infringement.

Inside Omission of Notice Or Error in Notice