Page:H.R. Rep. No. 94-1476 (1976) Page 137.djvu

 authors, no matter how many there are. The bill adopts this system as the simplest and fairest of the alternatives for dealing with the problem.

Anonymous works, pseudonymous works, and works made for hire

Computing the term from the author’s death also requires special provisions to deal with cases where the authorship is not revealed or where the “author” is not an individual. Section 302(c) therefore provides a special term for anonymous works, pseudonymous works, and works made for hire: 75 years from publication or 100 years from creation, whichever is shorter. The definitions in section 101 make the status of anonymous and pseudonymous works depend on what is revealed on the copies or phonorecords of a work; a work is “anonymous” if “no natural person is identified as author,” and is “pseudonymous” if “the author is identified under a fictitious name.”

Section 302(c) provides that the 75- and 100-year terms for an anonymous or pseudonymous work can be·converted to the ordinary life-plus-50 term if “the identity of one or more authors * * * is revealed” in special records maintained for this purpose in the Copyright Office. The term in such cases would be “based on the life of the author or authors whose identity has been revealed.” Instead of forcing a user to search through countless Copyright Office records to determine if an author’s identity has been revealed, the bill sets up a special registry for the purpose, with requirements concerning the filing of identifying statements that parallel those of the following subsection (d) with respect to statements of the date of an author’s death.

The alternative terms established in section 302(c)—75 years from publication or 100 years from creation, whichever expires first—are necessary to set a time limit on protection of unpublished material. For example, copyright in a work created in 1978 and published in 1988 would expire in 2063 (75 years from publication). A question arises as to when the copyright should expire if the work is never published. Both the Constitution and the underlying purposes of the bill require the establishment of an alternative term for unpublished work and the only practicable basis for this alternative is “creation.” Under the bill a work created in 1980 but not published until after 2005 (or never published) would fall into the public domain in 2080 (100 years after creation).

The definition in section 101 provides that “creation” takes place when a work “is fixed in a copy or phonorecord for the first time.” Although the concept of “creation” is inherently lacking in precision, its adoption in the bill would, for example, enable a scholar to use an unpublished manuscript written anonymously, pseudonymously, or for hire, if he determines on the basis of internal or external evidence that the manuscript is at least 100 years old. In the case of works written over a period of time or in successive revised versions, the definition provides that the portion of the work “that has been fixed at any particular time constitutes the work as of that time,” and that, “where the work has been prepared in different versions, each version constitutes a separate work.” Thus, a scholar or other user, in attempting to determine whether a particular work is in the public domain, needs to look no further than the particular version he wishes to use.