Page:Copyright Law Revision (Senate Report No. 94-473).djvu/139

 , a certificate is required to be given prima facie weight in any judicial proceedings if the registration it covers was made “before or within five years after first publication of the work”; thereafter the court is given discretion to decide what evidentiary weight the certificate should be accorded. This 5-year period is based on a recognition that the longer the lapse of time between publication and registration the less likely to be reliable are the facts stated in the certificate.

Under section 410(c), a certificate is to “constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” The principle that a certificate represents prima facie evidence of copyright validity has been established in a long line. of court decisions, and it is a sound one. It is true that, unlike a patent claim, a claim to copyright is not examined for basic validity before a certificate is issued. On the other hand, endowing a copyright claimant who has obtained a certificate with a rebuttable presumption of the validity of his copyright does not deprive the defendant in an infringement suit of any rights; it merely orders the burdens of proof. The plaintiff should not ordinarily be forced in the first instance to prove all of the multitude of facts that underlie the validity of his copyright unless the defendant, by effectively challenging them, shifts the burden to him to do so.

Section 410(d), which is in accord with the present practice of the Copyright Office, makes the effective date of registration the day when an application deposit, and fee “which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration” have all been received. Where the three necessary elements are received at different times the date of receipt of the last of them is controlling, regardless of when the Copyright Office acts on the claim. The provision not only takes account of the inevitable timelag between receipt of the application and other material and the issuance of the certificate, but it also recognizes the possibility that a court might later find the Register wrong in refusing registration.

The first sentence of section 411(a) restates the present statutory requirement that registration must be made before a suit for copyright infringement is instituted. Under the bill, as under the law now in effect, a copyright owner who has not registered his claim can have a valid cause of action against someone who has infringed his copyright, but he cannot enforce his rights in the courts until he has made registration.

The second and third sentences of section 411 (a) would alter the present law as interpreted in Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus Watch Co., 260 F.2d 637 (2d Cir. 1958). That case requires an applicant, who has sought registration and has been refused, to bring an action against the Register of Copyrights to compel the issuance of a certificate, before he can bring suit against an infringer. Under section 411, a rejected claimant who has properly applied for registration may maintain an infringement suit if he serves notice of it on the Register of Copyrights. The Register is authorized,