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Issue 47 | February 3, 2003
Certain Unpublished Works
Now in the Public Domain
 The U.S. Copyright Office recently confirmed that certain works which were neither published nor registered as of Jan. 1, 1978, and whose author died before 1933, entered the public domain on Jan. 1, 2003, unless they were later published on or before Dec. 31, 2002.

Under the 1976 and 1988 amendments to 17 U.S.C. §303, works that were created, and neither published nor registered in the Copyright Office, before Jan. 1, 1978 lost their common law protection and acquired a statutory term of protection that was the life of the author plus 70 years. Congress also provided an additional 25-year term extension, extended in 1998 to 45 years, if the work was published on or before Dec. 31, 2002. That first 25-year term extension expired on Dec. 31, 2002. Consequently, any work that was neither published nor registered as of Jan. 1, 1978, and whose author died before 1933, entered the public domain on Jan. 1, 2003, unless it was published on or before Dec. 31, 2002. If the author died in 1933 or later, the work will be protected for 70 years after the author’s death.

These copyright term extensions continue to be quite controversial in the U.S. and abroad. The January 15th decision by the Supreme Court in Eldred v. Ashcroft, holding that Congress was within its constitutional rights when it extended copyright terms, was severly criticized the following day in The New York Times. According to the Times' piece, "the Supreme Court's decision makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity. Public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment."

For publishers, on the other hand, their recent Supreme Court victory is just one part of a much larger campaign. According to a recent article in CNETNews.com, the Recording Industry Association of America and other copyright holders are pressing policy-makers in Europe and elsewhere to bring their copyright laws in line with those of the United States. For example, European and Canadian copyright protections for sound recordings generally last just 50 years, compared with 95 years in the United States.

It is argued that these differences threaten to carve out a free-swapping zone for popular works as has already happened for bootleg recordings of 1950s musical artists ranging from Miles Davis to Elvis Presley. However publisher's efforts abroad have met with limited success so far. For example, even though the new European Copyright Directive maintains the 50-year limit, it has yet to be widely implemented due, in part, to the attention that it has received from a wide range of interest groups and individuals. It appears likely that these controversial issues in copyright law will continue to receive public attention in the U.S. and Europe well into the future.

To discuss this topic further, please contact the author, Bill Heinze, at Thomas, Kayden, Horstemeyer & Risley. The information contained in this email is provided for informational purposes only and does not represent legal advice. Neither the APLF nor the author intends to create an attorney client relationship by providing this information to you through this message.

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