Tag: copyright duration

Public Domain Day 2017

Today on January 1st, we celebrate Public Domain Day—the day each year where works enter the public domain for many countries around the world following the expiration of their term of copyright protection.

Public domain works are works free of copyright restrictions; works capable of being freely reproduced, shared, and built upon by users. As we have discussed on this blog before, a robust public domain supports the underlying purpose of U.S. copyright law to promote the progress of knowledge and learning.[1]

But while many counties will see new works added to the public domain this year, there will be no published works entering the public domain in the United States. In fact, no published works will be added to the public domain in the United States until 2019.

Why the delay? The U.S. Constitution states that copyright protections may exist only for “limited times,” but our copyright law has been amended several times to extend the length of the term of protection. Under our first federal copyright statute, copyright protection lasted for an initial term of 14 years, renewable for another 14 years. The current term of protection for copyrighted works is the lifetime of the author plus an additional 70 years. As a result of this extension of copyright and Congress’s decision to apply the extension of copyright protection retroactively to existing works, works published in the United States from 1923 to 1977 will remain protected for 95 years after their date of publication. This means that works we would normally expect to enter the public domain today (i.e., published works whose author died in 1946) will not enter the public domain until much later.

For more information on Public Domain Day and works entering the public domain in other countries this year, visit:

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] For this reason, authors today may chose to dedicate their work to the public domain through means such as the Creative Commons Public Domain Dedicator (CC0) tool rather than wait for the term of copyright protection to expire.

Copyright duration for musical compositions and sound recordings

This is the second of a 4-part series on issues in music copyright. Part 2 will provide an overview of the duration for musical composition and sound recording copyrights.

As we discussed in part 1 of our series, music copyright is broken down between musical compositions and sound recordings. It is important to keep this distinction in mind when considering the duration of either of these copyright terms, because different sets of laws will govern the duration of the copyright depending on the type of work being considered (sound recording or musical composition) and when that work was created.

Musical Compositions: Copyright duration for fixed musical works, including original compositions and original arrangements or versions of earlier works, follows the same termination timeline as other literary works. Duration for the musical composition copyright will depend on a number of factors including the time in which the work was created (the time in which the work was fixed), the time in which it was published, who created the work, and whether proper renewal and registration was filed. The following tables explain how copyright duration varies:

Created on or after 1/1/1978

Duration

One author Life of the author + 70 years
Joint authorship Life of the last surviving author + 70 years
Work-made-for-hire; anonymous works; pseudonymous works 95 years from publication or 120 years from fixation, whichever is shorter. If an anonymous author is later revealed, life of the author + 70 years.

 

Published before 1/1/1978

Duration

Works published before 1/1/1923 In the public domain
Works published on or after 1/1/1923 and before 1/1/1964 + proper renewal (including registration) filed 95 years from publication
Works published on or after 1/1/1923 and before 1/1/1964 + proper renewal (including registration) NOT filed In the public domain
Works published on or after 1/1/1964 and before 1/1/1978 95 years from publication

 

Created but not published before 1/1/1978

Duration

All works In no case does copyright expire before 12/31/2002.
Not published on or before 1/1/1978 and on or after 12/31/2002. Use same rules for works created on or after 1/1/1978 (from chart 1 above), but in no case will copyright expire before 12/31/2002.
Meanwhile published on or after 1/1/1978 and on or before 12/31/2002. Use same rules for works created on or after 1/1/1978 (from chart 1 above), but in no case will copyright expire before 12/31/2047.

Prior iterations of U.S. copyright law required published works to contain a notice including either © or ℗ (for sound recordings), the year of first publication, and the name of the copyright owner.  Works created on or after 3/1/1989 no longer need to contain a notice, but earlier works are still bound by the requirement. To see how compliance and noncompliance with notice requirement affect copyright duration, see Peter B. Hirtle’s Public Domain chart.

Sound Recordings: Sound recordings were not granted federal copyright protection until the passage of the Sound Recording Act of 1971. As a result, the law governing the duration of a sound recording copyright will vary depending on the time in which the work was created.

For works created on or after 2/15/1972, copyright duration mirrors the general rules that we see above for musical compositions created on of after 1/1/1978.

Created on or after 2/15/1972

Duration

One author Life of the author + 70 years
Joint authorship Life of the last surviving author + 70 years
Work-made-for-hire; anonymous works; pseudonymous works 95 years from publication or 120 years from fixation, whichever is shorter.If an anonymous author is later revealed, life of the author + 70 years.

Like musical compositions, sound recordings made on or after 2/15/1972 must also comply with proper renewal, registration, and notice requirements.

Works published on or after 2/15/1972

Duration

Works published on or after 2/15/1972 and before 1/1/1978 + proper notice filed 95 years from publication
Works published on or after 2/15/1972 and before 1/1/1978 + proper notice NOT filed In the public domain
Works published on or after 1/1/1978 and before 3/1/1989 + proper notice NOT filed + subsequent registration NOT filed In the public domain
Works published on or after 1/1/1978 and before 3/1/1989 + proper notice filed Use same rules for works created on or after 1/1/1978 (from chart 1 above).
Works published on or after 3/1/1989 Use same rules for works created on or after 1/1/1978 (from chart 1 above).

Works created prior to 2/15/1972, will be governed by state law. Protection typically comes from state statutes, state copyright common law, misappropriation, or unfair competition.

Traditionally, common law protection ceases at the time of the publication of the work, though state law protection may still exist under a separate property right or theory of unfair competition. Following the 1976 Copyright Act, “publication” of sound recordings under federal law included the public distribution or sale of those phonorecords, but not the public performance or display of the work. The Act, however, only applies to those sound recordings made on or after 2/15/1972.  As to sound recordings made prior to 2/15/1972, states may define what is required for publication under their own law, and may specify whether publication of pre-1972 sound recordings is required to cease state law protection.

Because copyright duration for sound recordings could be potentially indefinite under state law, Congress set the latest date for protection as 2/15/2067. After that point all sound recording created before 2/15/1972, if they have not done so already (California, for example, provides for exclusive ownership in a sound recording until 2/15/2047) will enter into the public domain.

*Termination of Transfer: It is also important to keep in mind that the duration of the grant of a copyright may be affected by the termination of transfer right provided in the Copyright Act. For more information on this right see part 3 of our series on music copyright in which we discuss how the termination of transfer right works.

This blog has provided an overview of the duration or music copyrights. In the next part of our series we will look closer at the termination of transfer right and how it may be used.

 

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Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.

Why Copyright Education?

In May of this year, American Libraries published a letter I wrote about copyright education.  I wrote the letter in response to an opinion piece called “The Copyright Mummies” that Melanie Schlosser, also of OSU, had written in the March issue  about the harm of long copyright terms.  In it, Schlosser argued that we should stop “fetishizing the artist” and recognize that today’s longer copyright terms mostly enrich large entertainment companies and the few, most successful artists, not the average creator and his or her family.  She concluded with a call “to honor the creative process by ensuring a meaningful dialogue between creators—past, present, and future.”

My letter was a partial answer to this question:  Given the reality of long copyright terms and my own pessimism that those terms will get shorter, how do we honor the creative process and have that meaningful dialogue?  Although my answer was aimed toward librarians, it is relevant for all of us.  We need to start that dialogue by knowing something about current copyright law and its impact on our lives and work.

Copyright terms are long these days  (The U.S. Copyright Office has a good circular explaining the complicated laws of copyright duration), and they aren’t likely to be shortened in the foreseeable future.  (See, for example, Eldred v. Ashcroft , holding that a retroactive extension of copyright terms is not unconstitutional.)  Although many postulate about the desirability of going back to shorter copyright terms, long terms are the reality of the copyright world in the U.S. today.

Schlosser is correct that these long terms primarily benefit entertainment and publishing companies.  They also benefit the few creators—and their heirs—who are talented, lucky, and persistent enough to make significant money from their creative work.  As work stays in copyright longer, creators die and their heirs can’t be found.  This problem with orphan works and the lag before work enters the public domain has an effect on the work we do in the future.

Whether or not most of us think of ourselves as artists, we are making copyrighted work all the time when we write papers, make videos for YouTube, or write blog posts.  We’re also reusing copyrighted work as we do these things.  We’re remixing content, quoting books and papers other people have written, trying to get permission to include a chart or diagram in a scholarly paper.  Long copyright terms make all these reuses more problematic.

How do we deal with our position as creators and copyright holders?  How do we decide how relate to other copyright holders?  What can we do with their work legally?  What do we think it is right to do ethically with another’s work?  How do the norms of our professions fit in?  There are a lot of thorny questions with regard to copyright, and the answers are often not clear cut.  But, since we all participate in copyright, let’s start by trying to get a sense of what the law actually says and what are options are at present, and then move on to think about what we wish copyright would be.    The dialogue we hold is between us and the creators of the past, present, and future, and some of that dialogue is with ourselves, as people who participate in both sides of the copyright coin.