Copyright term and the public domain in the United States: 7 July 2004

Information Outlook, Nov, 2004

UNPUBLISHED WORKS
Type of Work                     Copyright Term

Unpublished works                Life of the author   70 years
Unpublished anonymous and        120 years from date of creation
pseudonymous works, and
works made for hire (corporate
authorship)
Unpublished works created        Life of the author   70 years or 31
before 1978 that were published  December 2047, whichever is greater
before 1 January 2003
Unpublished works created        Life of the author   70 years
before 1978 that were published
after 31 December 2002
Unpublished works when the       120 years from date of creation (4)
death date of the author is not
known (3)

WORKS PUBLISHED IN THE US
Date of Publication (5)          Conditions (6)

Before 1923                      None
1923 through 1977                Published without a copyright notice
1978 to 1 March 1989             Published without notice, and without
                                 subsequent registration
1978 to 1 March 1989             Published without notice, but with
                                 subsequent registration
1923 through 1963                Published with notice but copyright was
                                 not renewed (7)
1923 through 1963                Published with notice and the copyright
                                 was renewed (7)
1964 through 1977                Published with notice
1978 to 1 March 1989             Published with notice
After 1 March 1989               None

WORKS PUBLISHED OUTSIDE THE US (9)
Date of Publication              Conditions

Before 1 July 1909               None

Works Published Abroad Before 1978 in Compliance with US Formalities (8)
1 July 1909 through 1922         Published in compliance with US
                                 formalities
1923 through 1977                Published with notice, and still in
                                 copyright in its home country as of 1
                                 January 1996

Works Published Abroad Before 1978 in Compliance with US Formalities (8)
1 July 1909 through 1922         Published in a language other than
                                 English and without subsequent
                                 republication with a copyright notice
                                 the public domain in its home country
                                 as of January 1996
1923 through 1977                In the public domain in its home
                                 country as of 1 January 1996
1923 through 1977                Published in a language other than
                                 English, without subsequent
                                 republication with a copyright notice,
                                 and not in the public domain its home
                                 country as of 1 January 1996
1923 through 1977                Published in English, without
                                 subsequent republication with a
                                 copyright notice, and not the public
                                 domain in its home country as of
                                 January 1996

Works Published Abroad After 1 January 1978
After 1 January 1978             Copyright in the work in its home
                                 country has not expired by 1 January
                                 1996

Special Cases
After 1 July 1909                Created by a resident of Afghanistan,
                                 Bhutan, Ethiopia, Iran, Iraq, Nepal,
                                 San Marino, and possibly Yemen, and
                                 published in one of these
                                 countries (12)
After 1 July 1909                Works whose copyright was once owned or
                                 administered by the Alien Property
                                 Custodian, and whose copyright, if
                                 restored, would as of January 1, 1996,
                                 be owned by a government (13)

UNPUBLISHED WORKS
Type of Work                     What was in the public domain in the
                                 U.S. as of 1 January 2004 (2)

Unpublished works                Works from authors who died before 1934
Unpublished anonymous and        Works created before 1884
pseudonymous works, and
works made for hire (corporate
authorship)
Unpublished works created        Nothing. The soonest the works can
before 1978 that were published  enter the public domain is 1 January
before 1 January 2003            2048
Unpublished works created        Works of authors who died before 1934
before 1978 that were published
after 31 December 2002
Unpublished works when the       Works created before 1884 (4)
death date of the author is not
known (3)

WORKS PUBLISHED IN THE US
Date of Publication (5)          Copyright Term (2)

Before 1923                      In the public domain
1923 through 1977                In the public domain
1978 to 1 March 1989             In the public domain
1978 to 1 March 1989             70 years after the death of author, or
                                 if work of corporate authorship, the
                                 shorter of 95 years from publication,
                                 or 120 years from creation (2)
1923 through 1963                In the public domain
1923 through 1963                95 years after publication date (2)
1964 through 1977                95 years after publication date (2)
1978 to 1 March 1989             70 years after death of author, or if
                                 work of corporate authorship, the
                                 shorter of 95 years from publication,
                                 or 120 years from creation (2)
After 1 March 1989               70 years after death of author, or if
                                 work of corporate authorship, the
                                 shorter of 95 years from publication,
                                 or 120 years from creation (2)

WORKS PUBLISHED OUTSIDE THE US (9)
Date of Publication              Copyright Term in the United States

Before 1 July 1909               In the public domain

Works Published Abroad Before 1978 in Compliance with US Formalities (8)
1 July 1909 through 1922         In the public domain
1923 through 1977                95 years after publication date (9)

Works Published Abroad Before 1978 in Compliance with US Formalities (8)
1 July 1909 through 1922         In the 9th Judicial Circuit, the same
                                 as for an unpublished work; in the rest
                                 of the US, likely to be in the public
                                 domain (11)
1923 through 1977                In the public domain
1923 through 1977                In the 9th Judicial Circuit, the same
                                 as for an unpublished work; in the rest
                                 of the US, likely to be 95 years after
                                 publication date (11)
1923 through 1977                95 years after publication date (9)

Works Published Abroad After 1 January 1978
After 1 January 1978             70 years after death of author, or if
                                 work of corporate authorship, the
                                 shorter of 95 years from publication,
                                 or 120 years from creation

Special Cases
After 1 July 1909                Not protected by US copyright law
                                 because they are not party to
                                 international copyright agreements
After 1 July 1909                Not protected by US copyright law

(1) This chart was first published in published in Peter B. Hirtle,
"Recent Changes To The Copyright Law: Copyright Term Extension,"
Archival Outlook, January/February 1999. This version is current as of 6
July 2004. The most recent version is found at
http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm.
The chart is based in part on Laura N. Gasaway's chart, "When Works Pass
Into the Public Domain," at <http://www.unc.edu/~unclng/publicd.htm>,
and similar charts found in Marie C. Malaro, A Legal Primer On Managing
Museum Collections (Washington, D.C.: Smithsonian Institution Press,
1998): 155-156. A useful copyright duration chart by Mary Minow,
organized by year, is found at <http://www.librarylaw.com/Digitization
Table.htm>. A "flow chart" for copyright duration is found at
<http://www.bromsun.com/practice/copyrights/copyright_durations.html>.
See also Library of Congress Copyright Office. Circular 15a, Duration of
Copyright: Provisions of the Law Dealing with the Length of Copyright
Protection (Washington, D.C.; Library of Congress, 2004)
<http://www.copyright.gov/circs/circ15a.pdf>.
(2) All terms of copyright run through the end of the calendar year in
which they would otherwise expire, so a work enters the public domain on
the first of the year following the expiration of its copyright term.
For example, a book published on 15 March 1923 will enter the public
domain on 1 January 2019, not 16 March 2018 (1923   95 = 2018).
(3) Unpublished works when the death date of the author is not known may
still be copyrighted, but certification from the Copyright Office that
it has no record to indicate whether the person is living or died less
than 70 years before is a complete defense to any action for
infringement. See 17 U.S.C. [section] 302(e).
(4) Presumption as to the author's death requires a certified report
from the Copyright Office that its records disclose nothing to indicate
that the author of the work is living or died less than seventy years
before.
(5) "Publication" was not explicitly defined in the Copyright Law before
1976, but the 1909 Act indirectly indicated that publication was when
copies of the first authorized edition were placed on sale, sold, or
publicly distributed by the proprietor of the copyright or under his
authority."
(6) Not all published works are copyrighted. Works prepared by an
officer or employee of the United States Government as part of that
person's official duties receive no copyright protection in the US. For
much of the twentieth century, certain formalities had to followed to
secure copyright protection. For example, some books had to be printed
in the United States to receive copyright protection, and failure to
deposit copies of works with the Register of Copyright could result in
the loss of copyright. The requirements that copies include a formal
notice of copyright and that the copyright be renewed after twenty eight
years were the most common conditions, and are specified in the chart.
(7) A 1961 Copyright Office study found that fewer than 15% of all
registered copyrights were renewed. For books, the figure was even
lower: 7%. See Barbara Ringer, "Study No. 31: Renewal of Copyright"
(1960), reprinted in Library of Congress Copyright Office. Copyright law
revision: Studies prepared for the Subcommittee on Patents, Trademarks,
and Copyrights of the Committee on the Judiciary, United States Senate,
Eighty-sixth Congress, first [-second] session. (Washington: U. S. Govt.
Print. Off, 1961), p. 220. A good guide to investigating the copyright
and renewal status of published work is Samuel Demas and Jennie L.
Brogdon, "Determining Copyright Status for Preservation and Access:
Defining Reasonable Effort," Library Resources and Technical Services
41:4 (October, 1997): 323-334. See also Library of Congress Copyright
Office. How to investigate the copyright status of a work. Circular 22.
[Washington, D.C.; Library of Congress, Copyright Office, 2004]. The
Online Books Page FAQ, especially "How Can I Tell Whether a Book Can Go
Online?" and "How Can I Tell Whether a Copyright Was Renewed?", is also
very helpful.
(8) The following section on foreign publications draws extensively on
Stephen Fishman. The Public Domain: How to Find Copyright-free Writings,
Music, Art & More. (Berkeley: Nolo.com, 2004). It applies to works first
published abroad and not subsequently published in the US within 30 days
of the original foreign publication. Works that were simultaneously
published abroad and in the US are treated as if they are American
publications.
(9) Foreign works published after 1923 are likely to be still under
copyright in the US because of the Uruguay Round Agreements Act (URAA)
modifying the General Agreement on Tariffs and Trade (GATT). The URAA
restored copyright in foreign works that as of 1 January 1996 had fallen
into the public domain in the US because of a failure to comply with US
formalities. One of the authors of the work had to be a non-US citizen
or resident, the work could not have been published in the US within 30
days after its publication abroad, and the work needed to still be in
copyright in the country of publication. Such works have a copyright
term equivalent to that of an American work that had followed all of the
formalities. For more information, see Library of Congress Copyright
Office, Highlights of Copyright Amendments Contained in the Uruguay
Round Agreements Act (URAA). Circular 38b. [Washington, D.C.: Library of
Congress, Copyright Office, 2004].
(10) US formalities include the requirement that a formal notice of
copyright be included in the work; registration, renewal, and deposit of
copies in the Copyright Office; and the manufacture of the work in the
US.
(11) The differing dates is a product of the question of controversial
Twin Books v. Walt Disney Co. decision by the 9th Circuit Court of
Appeals in 1996. The question at issue is the copyright status of a work
only published in a foreign language outside of the United States and
without a copyright notice. It had long been assumed that failure to
comply with US formalities placed these works in the public domain in
the US and, as such, were subject to copyright restoration under URAA
(see note 9). The court in Twin Books, however, concluded "publication
without a copyright notice in a foreign country did not put the work in
the public domain in the United States." According to the court, these
foreign publications were in effect "unpublished" in the US, and hence
have the same copyright term as unpublished works. The decision has been
harshly criticized in Nimmer on Copyright, the leading treatise on
copyright, as being incompatible with previous decisions and the intent
of Congress when it restored foreign copyrights. The Copyright Office as
well ignores the Twin Books decision in its circular on restored
copyrights. Nevertheless, the decision is currently applicable in all of
the 9th Judicial Circuit (Alaska, Arizona, California, Hawaii, Idaho,
Montana, Nevada. Oregon, Washington, and Guam and the Northern Mariana
Islands), and it may apply in the rest of the country.
(12) See Library of Congress Copyright Office, International Copyright
Relations of the United States. Circular 38a. [Washington, D.C.: Library
of Congress, Copyright Office, 2004].
(13) See 63 Fed. Reg. 19,287 (1998), Library of Congress Copyright
Office, Copyright Restoration of Works in Accordance With the Uruguay
Round Agreements Act; List Identifying Copyrights Restored Under the
Uruguay Round Agreements Act for Which Notices of Intent To Enforce
Restored Copyrights Were Filed in the Copyright Office.