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Cancellation of Copyright Claim

Upon proper petition by the claimant of copyright and surrender of his certificate, the Office will inscribe on the face of the certificate and corresponding record the statement “Cancelled at the request of the copyright proprietor.” The Patent Office followed the same practice. Ex parte Fraschetti, 41 USPQ 789 (1939). The petition should set forth the reason for the request, and of course the copyright notice should be removed from any subsequent issues of the print or label in question. The cancellation of the entry would not of itself automatically abrogate the copyright but it would probably have the effect of rendering it valueless by estopping the proprietor from bringing any suit or proceeding for infringement occurring after such canellation.

Correction of Errors

The utmost care should be taken in filling out the original application, for the Copyright Act provides no machinery for the correction of any errors made by the applicant which are not cleared up prior to actual registration and issuance of the certificate. If the applicant afterwards discovers that he made a wrong statement of a material character, such as the date of publication, it will be necessary to file a new application and surrender the original certifiate for cancellation.

Registration in the wrong category will no longer be available as a defense for an infringer (as in Dixie-Vortex Co. v. LilyTulip Cup Corp., 33 USPQ 496; affirmed 37 USPQ 164). Section 5 of the general Act expressly provides that “any error in classification shall not invalidate or impair the copyright protection secured under this Act”. Renewal of Copyright

original publication, and so far as concerns copyrights “subsisting" at the time the amendatory Act went into effect on July 1, 1940, renewals are governed by section 4 thereof. The application in behalf of “the proprietor” must be filed in the Copyright Office "within one year prior to the expiration of the original term of 28 years”. The term “proprietor” here means whoever owns the copyright at the time the renewal year arrives, and not necessarily the original proprietor.

Commercial Prints and Labels

The certificates issued by the Patent Office prior to 1923 do not give the date of publication but only the date of issue of the certificate. However, the Copyright Office is now in possession of the original applications and dossiers of the Patent Office and will furnish upon request the date of publication in any specific case.

Copyright Office Procedure

Applications for registration of commercial prints and labels go through substantially the same process of examination as in the case of other copyright material, except that a special section has been set up to deal exclusively with all matters pertaining to this class. The examiner in charge of the section is responsible for determining in the first instance whether the work deposited comes within his sphere of action and, if so, whether the applicant has complied adequately with the statutory requirements. Any material irregularity found is usually straightened out by correspondence or personal interview on the part of the applicant or his attorney.

In cases presenting unusual difficulty the examiner may refer the matter to the general Revisory Board, which consists of three members of the legal staff of the Office. If the Board is unable to reach an unanimous agreement, the whole docket with written opinions of the members of the Board is submitted to the Assistant Register of Copyrights for review. If his recommendation is adverse to the applicant, the matter is then referred to the Register of Copyrights for final disposition.

The Copyright Office does not undertake to inquire whether the applicant has complied with any applicable law or laws other than the copyright law, such, for example, as the Federal Food, Drug and Cosmetic Act (U. S. Code, Tit. 21, sec. 301, Supp. 1938) or the regulations of the Federal Alcohol Commission respecting labels (formulated under U. S. Code, Tit. 27, sec. 205-e). The responsibility for such compliance is placed squarely upon the applicant himself.

Chapter IV
Non-Copyrightable Material

Mention has already been made of certain works which, though in the form of writings, are not protectible under the copyright law. We shall now deal with the matter more in detail. Blank Forms, Vouchers, Checks, and Like Appurtenances of

Business These as a rule lack the necessary element of originality or authorship to qualify for copyright. Having become fairly well standardized, the grant of copyright would tend to hamper the business world in the free use of such material, so that there might come a time when it would be unsafe for anyone to make use of ordinary commercial terms for fear of trespassing upon a copyrighted form. The same applies to standardized clauses in contracts, deeds, notes, mortgages, leases, etc.

There are few specific cases on the subject, but note particularly the old case of Baker v. Selden, 101 U.S. 99 (1879), where the Supreme Court held that the copyright of Selden's book explaining his system of bookkeeping did not protect the system nor the blank forms necessary to operate the system, but only the literary matter by way of explanation. If Selden had secured a patent for his new system, the outcome for him might have been different, but then he would have been obliged to bring his suit under the patent law and not under the copyright law, for Baker did not copy any of the literary material in Selden's book, but merely used similar forms in a book of his own composition.

Such plans and forms of expression as have been worked out over a period of years by various insurance companies, for example, do not become subject to copyright by being embodied in insurance policies. Dorsey v. Old Surety Life Ins. Co., 34 USPQ 226 (1937); aff'd 39 USPQ 92. But compilations of material taken directly from the statutes and arranged in convenient form

may be the subject of copyright notwithstanding that additional data must be supplied by the individual users. Brightly v. Littleton, 37 F. 103 (1888). So also a questionnaire may be the subject of copyright, to the extent that it may embody original matter. Obviously the decisive factor is not the mere presence of blank forms, but the absence of anything in the way of original work of authorship.

Government Publications and Works in Public Domain

Section 7 of the Copyright Act provides: “That no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to July 1, 1909, and has not been copyrighted in the United States”.

If a work is in the “public domain" it is of course free to anybody's use, and notwithstanding the specific limitation here to textual works, this elementary rule applies equally to every other kind of "writing,” such as music and pictorial works. Section 6, however, provides that compilations or abridgements, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain "shall be regarded as new works subject to copyright under the provisions of this Act” (i.e., upon compliance with such provisions); but it goes on to add the significant clause that “the publication of any such new works shall not ... be construed to imply an exclusive right to such use of the original works.” Any member of the public would therefore have an equal right to make an independent adaptation, arrangement, etc., of such original works as are in the public domain.

It is doubtful whether even a special law of Congress could effectively restore copyright status to a work which has fallen into the public domain, either from lapse of time or failure to observe statutory formalities; and certainly not to the extent of disturbing existing equities. Such a law would plainly be contrary to public policy as enunciated in sections 6, 7 and 23 (last proviso). In a recent case the attempt to secure a private relief law of this character, after the renewal period had elapsed, proved unsuccessful (H.R. 6160, 76th Cong.).

Note that July 1, 1909, is the deadline for the exclusion from copyright of all material published prior to that date either here or abroad without compliance with the provisions of the former law. Inasmuch as only a comparatively few foreign authors sought copyright in the United States before that date, on account of the onerous burden of reprinting in the United States, this provision threw into the public domain in this country at one "fell swoop” a vast number of foreign works antedating that period, as well as a great many domestic works (as yet unlisted) which failed of copyright because the necessary copies were not deposited “on or before the date of publication," or because of inadequate copyright notice or failure to renew the original copyright. Careful scrutiny of the copyright records is therefore necessary to determine the exact status of these early publications.

Certain works may have all the qualities essential to copyright and yet be barred the privilege on grounds of public policy, such as the opinions of the courts and the statutes embodying the laws, State or Federal, which every member of the public is presumed to know. Wheaton v. Peters, 8 U.S. 591 (1934); Howell v. Miller, 91 F. 129 (CCA 5, 1898). Section 7 specifically excludes from copyright "any publication of the United States Government or any reprint in whole or in part thereof”* with a proviso, however, as to governmental use of copyright material in any such publications as follows:

Provided, however, That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgement or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor."

In the Report accompanying the bill which became the Copyright Act (see Appendix), the following explanation is given:

“The proviso ... is inserted for the reason that the Government often desires to make use in its publications of copyrighted material, with the consent of the owner of the copyright, and it has been regarded heretofore as necessary to pass a special act every time this was done, providing that such use by the Government should not be taken to give to

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* But see section 371 to Title 39 of United States Code, The Postal Service, authorizing the Postmaster General to secure copyright on behalf of the United States in black-and-white illustrations of United States postage stamps, printed as a public document to be sold by the Superintendent of Documents.

There is nothing in the law to prevent the Government from receiving a copyright by purchase or gift and holding it as proprietor.

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