The Public Domain and the Impact of New Legislation


This article has been revised to include information regarding the impact on the public domain resulting from the Sony Bono Copyright Term Extension Act ("Copyright Term Extension Act") that was signed into law in November 1998 and will become effective on January 1, 1999 and it also contains new material that involves derivative works and restored copyright protection for foreign works under legislation required by the General Agreement on Tariffs and Trade ("GATT").

INTRODUCTION

Creative works that are in the public domain are not protected under United States copyright law. The purpose of this article is to provide a basic understanding of the scope of the public domain, make one aware of particular complexities involved in ascertaining whether a work is actually in the public domain and update the reader with respect to the recently passed Copyright Term Extension Act.

Whether a particular work is in the public domain may involve one or more of the following characteristics of a work or legal issues. Has the term of copyright protection established by the Copyright Act of 1909 expired for the work? Has the work been injected into the public domain by the failure of the copyright owner to adhere to the statutory formalities required by the 1909 or 1976 Copyright Act? Is the work a derivative work? Is the work an unpublished work? Has the copyright owner abandoned the work? Is the work a foreign work that is in the public domain in the United States but still protected by foreign copyright law? Is the work a foreign work that was previously in the public domain in the United States but has had its copyright protection restored in the United States?

The duration of copyright protection has expanded significantly for creative works during the past twenty plus years by the passage and implementation of the 1976 Copyright Act, amendments effecting renewal terms and the recently passed Copyright Term Extension Act. Furthermore, the passage of legislation in 1994 permitted foreign works that were still under copyright protection in their "source" country, but had forfeited their copyright protection in the United States for the failure to adhere to statutory formalities, to regain copyright protection in the United States. All these aforementioned legislative actions have either extended the time period for which a copyrighted work would be protected, therefore forestalling particular works from being injected into the public domain, or have removed particular foreign works from the public domain and restored their copyright protection. The result of these legislative actions is that it has delayed the placing of works into the public domain.

WHAT IS THE PUBLIC DOMAIN AND WHY IS IT IMPORTANT?

The public domain consists of creative works that are not eligible for or are no longer protected by United States copyright law. Stated another way, this means that works, such as textual material, artwork or photographs, that are in the public domain were either not eligible for copyright protection or are no longer controlled by their copyright owner. Instead any work that is in the public domain belongs to the public at large.

The significance of a work being in the public domain is that a public domain work is no longer protected by copyright law and thus is entitled to be used in whole or in part by any member of the public without permission or payment for its use and for any purpose. Usage of public domain materials may be extremely important to particular profit and non-profit publishers and authors. This is because a public domain work can be an excellent source of inexpensive content for new projects. The relative importance of public domain materials to a particular publisher is heavily dependent upon that publisher's specific publishing program and whether that publishing program concentrates upon "front list", "back list" or reprints of "classics" or other "public domain works".

The 1976 Copyright Act, and its predecessors, provides statutory copyright protection to the copyright owner of an original work of authorship. Since passage of the first copyright act in 1790 that permitted only "maps, charts and books" to be eligible for copyright protection, successive copyright acts, copyright office interpretations and judicial decisions have significantly increased the categories of creative works that are protected by copyright law. International treaties, such as GATT, that required the United States to restore copyright protection to many foreign works that had previously fallen into the public domain, have also played a role in their impact upon copyright protection and the public domain.

While understanding the concept of the public domain is relatively easy, the actual determination of whether a particular work or part of a work is in the public domain is frequently more difficult. Therefore, one must exercise caution before deciding to use a public domain work in its entirety as a stand-alone product or as a part of a new product. The reason for being cautious is that a publisher or author who mistakenly uses a work they believe is in the public domain runs the risk of copyright infringement.

WORKS THAT ARE AUTOMATICALLY IN THE PUBLIC DOMAIN

Works that are not eligible for copyright protection are automatically placed in the public domain as a matter of United States copyright law. The 1976 Copyright Act states that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery ... ." Copyright protection is also not available for works that are not original, works that are not fixed in a tangible medium of expression - such as conversations or speeches that are not written or recorded, facts, utilitarian objects, titles, plots, words and short phrases, and works of the federal government. However, despite the lack of copyright protection for the above-mentioned categories of works certain of these works, such as a compilation of facts, may under particular circumstances be eligible for protection under copyright law, while trademark, trade secrets or patent law may protect other categories of these works.

PROTECTED WORKS THAT ENTER THE PUBLIC DOMAIN

A work protected by copyright law will be injected into the public domain when (i) the statutory term of copyright protection for the work has expired, or (ii) copyright protection has been abandoned by the copyright owner, or (iii) copyright protection has been forfeited by a copyright owner's failure to comply with the copyright law's statutory formalities.

Term Of Copyright Protection

The current duration of copyright protection depends upon whether the work is governed by the 1909 Copyright Act or the 1976 Copyright Act and its subsequent amendments.

1976 Copyright Act - Works Created on or after January 1, 1978

The 1976 Copyright Act for the first time provided the identical term of protection for published and unpublished works. Previously, unpublished works were protected by common law copyright and such protection would be perpetual unless the unpublished work was eventually published. Furthermore, the 1976 Copyright Act abolished common law copyright protection with the effect that all creative works are now either protected by the 1909 or 1976 Copyright Act or they are not copyright protected at all.

The Copyright Term Extension Act amended '302(a) and (b) of the Copyright Act by adding as of January 1, 1999 an additional 20 years to the now existing maximum term of copyright protection. Therefore, the statutory term of copyright protection as of January 1, 1999 is the following: (i) individual author - life of the author plus 70 years; (ii) joint authors - 70 years from the death of the last surviving author; (iii) works made for hire - 95 years from publication or 120 years from the date of creation; (iv) anonymous and pseudonymous works - 95 years from publication or 120 years from date of creation, however, statutory protection could be converted to the "life plus 70" term under certain conditions. Therefore, under existing legislation no work that was created on or after January 1, 1978 will enter the public domain until 2069.

1909 Copyright Act - Works Created before January 1, 1978

Works created before January 1, 1978 are those that are most currently likely to be in the public domain. Determining the public domain status of these works is complicated by a number of factors including: (i) a dual system of protection based on whether the work was published or unpublished, (ii) whether the initial 28 year copyright term of protection was renewed by the copyright owner in a timely manner, and (iii) whether copyright protection was automatically renewed by a 1992 Amendment to the 1976 Copyright Act.

In addition the Copyright Term Extension Act amended '304 (a) of the 1976 Copyright Act by adding as of January 1, 1999 an additional 20 years of copyright protection for those works that were in their first term of protection on January 1, 1978 and for those works where copyright protection had been automatically renewed by the Copyright Renewal Act of 1992.

Published Works

A published work will be in the public domain if its term of statutory protection has expired. Therefore, any work published in 1922 or earlier is in the public domain. The passage of the Copyright Term Extension Act delayed injection into the public domain works published in 1923 or thereafter. Thus, if a 1923 or later published work would still have been copyright protected as of December 31, 1998 then its term of copyright protection would be extended for an additional 20 years and works published in 1923 will now be protected through December 31, 2018 instead of being injected into the public domain on January 1, 1999.

This does not, however, mean that all works published after January 1, 1923 will receive the additional 20 years protection because some of these works may have already been injected into the public domain. Therefore, in order to ascertain the public domain status of a particular work that was published after January 1, 1923 one must determine (i) the specific date of publication, (ii) whether the work was copyright registered and (iii) if the work was registered, whether copyright protection was renewed following its initial 28 year term of protection or automatically renewed.

In the event the copyright owner failed to register the work or renew its copyright protection for the renewal term then that work would have passed into the public domain upon publication or at the end of its initial 28-year term of copyright protection. On the other hand, if the copyright owner registered the work and renewed copyright protection in the work then the work as of January 1, 1999 would be protected for a total term of 95 years. The formal necessity of renewing copyright protection was ended by a 1992 Amendment that granted automatic renewal for all works published after 1964. Thus, as of January 1, 1999, all post-1964 works have a term of copyright protection for 95 years.

Unpublished Works

Passage of the Copyright Term Extension Act has also had an impact on unpublished works in that copyright protection now extends for the life of the author plus 70 years, however, the requirement that in no event would copyright protection expire for any unpublished work prior to December 31, 2002 was unchanged. One final change resulting from passage of the Copyright Term Extension Act is that in the event an unpublished work is published on or before December 31, 2002 then the copyright protection for this now published work would extend for an additional 20 years or until December 31, 2047.

Statutory Formalities

A copyright owner's failure to place a copyright notice on the work was the statutory formality that most frequently caused injection of a work into the public domain. The 1909 Copyright Act was extremely harsh in that a work would be injected into the public domain if that work either failed to include a copyright notice or contained a defective copyright notice upon the publication of the work.

The courts in an attempt to curtail this draconian result adopted a distinction between "general" and "limited" publication. This provided the courts with some flexibility that permitted them under certain circumstances to prevent the owner of a creative work from losing the copyright protection for and control of the use of the work. General publication of a work meant that a particular work was published and available to the public as a whole while limited publication meant that a work upon publication was only available to a limited class of persons and for a limited purpose. Through this distinction the courts were able to prevent works of limited publication from being injected into the public domain and permitted the copyright owner to retain common law copyright protection of the work. Works of general publication were not as fortunate as limited publication works since they were injected into the public domain.

The 1976 Act decreased significantly the adverse consequences of publication without a copyright notice. This was accomplished by permitting the copyright owner to "cure" unintentional or relatively unimportant omissions of the copyright notice and those instances where relatively small quantities of the work were distributed to the public without notice. Publication without notice could have been cured if the copyright owner registered the work within five years from publication and made reasonable efforts to add the copyright notice to all copies of the work previously distributed to the public.

Today, under the Berne Convention Implementation Act, copyright notice is no longer mandatory for works published after March 1, 1989, and thus any work published after this date could no longer be injected into the public domain for failing to contain a copyright notice. Although a copyright notice is no longer a mandatory requirement it is still advisable for the copyright owner to include the copyright notice on their creative work.

What should you do when you think a work has been injected into the public domain because of the failure to place a copyright notice on the work? First, ascertain the date of publication and whether the 1909 or 1976 Copyright Act controls the situation. Second, if the 1976 Copyright Act controls the work and a copyright notice was mandatory you must then determine whether the 1976 Copyright Act has been preempted by the Berne Convention Implementation Act. Third, if the 1976 Copyright Act controls the work investigate to determine whether the omission of the copyright notice was cured. Fourth, if the 1909 Copyright Act controls the work determine whether publication of the work was deemed to be one of "limited" or "general" publication.

DERIVATIVE WORKS

The public domain status of a derivative work has its own complexities. Even if the original creative work has been injected into the public domain the possibility exists that a derivative work may still be copyright protected. Copyright protection could have easily been extended to a derivative work if the author of the derivative work added new original authorship such as additional text, artwork or photographs.

Conversely, the possibility also exists that a derivative work may be in the public domain even though the original underlying work is still copyright protected. An example of this involves the stage play Pygmalion. The copyright owner of the play granted a license for the creation of a motion picture based upon the play. The film eventually lost its copyright protection and was injected into the public domain however; the play remained copyright protected. When a third party made prints of the film and rented them after the film went into the public domain the copyright owner of the play brought legal action for copyright infringement. The court ruled that because the film depicted portions of the play that the duplication of film prints and the renting of the films resulted in the copyright infringement of the play.

Therefore, it is always advisable to only use an original work that you are certain is in the public domain and not to use a derivative work where its new elements may still be copyright protected. In addition, do not use a derivative work that is in the public domain unless the original underlying work is also the public domain.

RESTORATION OF FOREIGN WORKS

As of January 1, 1996 legislation permitted the restoration of copyright protection for foreign works that had previously lost their copyright protection and fallen into the public domain in the United States because of the copyright owner's failure to comply with statutory formalities of United States copyright law. Under this legislation a foreign work's copyright protection could only be restored if the foreign work was still copyright protected in its "source" country and if the copyright owner took the initiative of requesting the restoration of copyright protection in the United States from the United States Copyright Office. If copyright protection was restored the duration of such protection would only continue for the remainder of the copyright term that the work would otherwise have originally enjoyed.

Therefore, if one desires to use a foreign work that they believe is in the public domain in the United States, they must check the records at the United States Copyright Office and ascertain that copyright protection for the particular work has not been restored.

CONCLUSION

The public domain is a complex issue with many nuances. Therefore, to lessen the risk of liability for copyright infringement it is important for anyone wanting to use public domain materials to determine, with as much certainty as possible, that the work they want to use is "actually" in the public domain.

COPYRIGHT DURATION

BASED ON 1998 SONY BONO
COPYRIGHT TERM EXTENSION ACT

Publication or
Creation
Copyright Duration
(as of January 1, 1999)
Published between
1909 through 1922
Initial term of copyright was 28 years and if renewed extended for an additional 28 years.
Published between
1923 through 1963
Initial term of copyright was 28 years and if renewed copyright extended for additional 67 years (Term = 95 years).
Published between
1964 and 1978
Initial term of copyright was 28 years and automatic renewal for additional 67 years (Term = 95 years).
Created on or after
January 1, 1978
Sole Author - life of author plus 70 years.

Joint Authors - life of longest surviving author plus 70 years.

Work Made For Hire - 95 years from publication or 120 years from creation, whichever less.

Anonymous/Pseudonymous - 95 years from publication or 120 years from creation, whichever less. If name of author disclosed to Copyright Office than life of author plus 70 years.

Created before 1978 but not
published on or before
December 31, 2002
Life of author plus 70 years, but copyright protection will not expire before December 31, 2002.
Created before 1978 and
published on or before
December 31, 2002
Life of author plus 70 years, but copyright protection will not expire before December 31, 2047

This article is not legal advice. You should consult an attorney if you have legal questions that relate to your specific publishing issues and projects.