Digital Millennium Copyright Act (DMCA)
Copyright Notice Requirement
Arnold P. Lutzker, Esq.
Lutzker & Lutzker LLP
Washington, DC 20005
August 19, 1999
This memo will address an issue that has arisen regarding interpretation
of Section 108(a)(3) of the Copyright Act, 17 U.S.C. § 108(a)(3),
as amended in the Digital Millennium Copyright Act of 1998 ("DMCA").
- The changes to Section 108(a)(3) of the Copyright Act were made
to update the section to ensure that libraries would be responsible
for including some notification that an item may be protected
by copyright, since the law, as of the Berne Convention Implementation
Act of 1988, no longer requires the copyright notice to appear.
- If the copyright notice does not appear on an article in a
journal issue or an article in a volume of separately authored
essays, stamping the article with a notice that the work may be
under copyright is sufficient ("NOTICE: This material may be protected
by Copyright Law (Title 17 U.S.C.")).
- If copying a chapter from a book in which the chapters do not
carry separate attribution, one should copy the copyright notice
from the front of the book. If the notice cannot be found, stamping
Section 108(a)(3) establishes, as one of the conditions for a library
or archive to copy works in its collections, the following:
(3) the reproduction or distribution of the work includes a notice
of copyright that appears on the copy or phonorecord that is reproduced
under the provisions of this section, or includes a legend stating
that the work may be protected by copyright if no such notice can
be found on the copy or phonorecord that is reproduced under
the provisions of this section. (Italics supplied).
The italicized portion of the quoted text represents the material
change included in the DMCA. Although the legislative history is
inconclusive on the precise explanation of this requirement, when
the text was being negotiated, the principal rationale for the change
was that since the Copyright Act has no formalities, the law does
not require that copyright notice appear on the work for copyright
law to apply. Thus, consistent with a growing demand by representatives
of copyright owners that institutional users, like a library or
archives, educate their patrons about copyright law rights and responsibilities,
ownership interests wanted some burden on the libraries to notify
their patrons that the work being reproduced might be protected
under copyright law, even in the absence of notice. Without the
change, the prior statutory language could have been read to allow
no reference to copyright if no notice appeared.
The key question raised by the inquiries is "what is the work?"
Is the "work" the article that is being copied or the journal issue
or collected essays from which the article is taken? It is an important
question because if the article does not contain separate copyright
notice, but the journal issue or volume of essays does have formal
notice, must the library or archive copy the journal issue's or
the volume's copyright notice when the article is reproduced?
First, it is clear under copyright law individual articles written
for a journal (such as The New Yorker or Harvard Law Review),
a periodical or a collection of essays, constitute separate works.
See 17 U.S.C. § 101 [definition of collective work: "a work,
such as a periodical issue, anthology, or encyclopedia, in which
a number of contributions, constituting separate and independent works
in themselves, are assembled into a collective work." [Italics supplied.]
These articles have independent authors, and the articles were
completed most likely at different times and in different places.
Copyright attaches to them individually.
Second, under copyright law, the journal issue or the volume of essays
also qualifies as a copyrighted compilation of the publisher. See 17 U.S.C.
§ 101 [definition of compilation: "a work formed by the collection
and assembling of preexisting materials or of data that are selected,
coordinated, or arranged in such a way that the resulting work as a whole
constitutes an original work of authorship. The term 'compilation' includes
collective works." [Italics supplied.]
The Copyright Act specifically provides that a separate contribution
to a collective work may bear its own notice; however, the notice of the
collective work can suffice for the compilation "as a whole ... to invoke
the provisions of sections 401(d) or 402(d)." 17 U.S.C. §
404(a) [copyright notice in the journal issue is sufficient evidence to
counter an argument of innocent infringement when considering damages].
However, for purposes of Section 108(a)(3), the compilation "as a whole"
represents a different "work" and its notice is not the notice referenced
in section 108, when it identifies an individual article. Moreover, given
the variations in contractual agreements between authors and publishers,
the copyright notice for the collected work may or may not apply to the
Therefore, in interpreting the Section 108(a)(3) requirement,
if the work being copied were an independent work that could contain
its own notice, but does not, it would be sufficient for the library
to stamp the copy "This work may be protected by copyright" or with
words to that effect. There is no specific obligation to look at
the notice for the journal issue or the volume, because the journal
is, in reality, a different work. Its copyright notice is intended
to cover that entire work, of which the reproduced article is only