Copyright Law

Church Law and Tax 1989-09-01 Recent Developments Copyright Law Richard R. Hammar, J.D., LL.M., CPA

Church Law and Tax 1989-09-01 Recent Developments

Copyright Law

A major change in the copyright law occurred a few months ago that will be of interest to churches. On March 1, 1989, the United States became a party to the “Berne Convention”—an international copyright convention established a century ago and endorsed by over 80 nations. Participation by the United States in this significant convention generally will increase the international protections available to American authors. To become a party to the convention, Congress had to make various changes in our copyright law (unwillingness to make the required changes was one of the major reasons that it took the United States a century to join the convention). Among the notable changes in our copyright law were the following two: (1) Mandatory notice of copyright has been abolished for works published for the first time on or after March 1, 1989. Failure to place a copyright notice on copies of works that are publicly distributed can no longer result in the loss of copyright. Obviously, this is a significant change in our copyright law, since prior to March 1, 1989, the failure to affix a valid copyright notice to a publicly distributed work could have resulted in loss of copyright protection. Placing an appropriate copyright notice on publicly distributed works is still strongly recommended, since it still can result in certain legal advantages to the copyright owner (e.g., it will alert the public that copyright protection is claimed in a work, and an infringer will not be able to claim that he or she “innocently infringed” upon the work of another). A copyright notice consists of three elements—the word “copyright” or the copyright symbol (a “C” in a circle), the name of the copyright owner, and the year of first publication. The Berne Convention is not retroactive. Accordingly, the notice requirements for works first published prior to March 1, 1989, remain unchanged. To illustrate, works first published between January 1, 1978 and February 28, 1989 without a valid copyright notice (as defined above) generally lost their copyright protection unless they were registered with the Copyright Office within five years of first publication (and a valid notice added to all copies distributed after discovery of the omission). Works first published before January 1, 1978 without a valid copyright notice generally lost all copyright protection immediately (with some exceptions). Obviously, the change in the notice requirement will result in considerable confusion among churches regarding the copyright status of literary or musical works. For example, suppose that a church would like to make copies of a piece of sheet music. The fact that the music does not bear a copyright notice does not mean that the work is not copyrighted. Clearly, it will now be more difficult for churches to determine whether or not they are free to make copies of some works. In summary—churches cannot safely assume that a work is “in the public domain” merely because it does not contain a valid copyright notice. (2) The penalties for copyright infringement have been increased significantly. “Statutory damages” increase from a range of $250 to $10,000 per infringement to a range of $500 to $20,000. Maximum damages for willful infringements increase from $50,000 to $100,000.

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