Part 3: Copyright Term Limits
(and a brief history lesson)
Copyrights may seem extensive and perhaps impenetrable but they are not absolute. Congress and the courts have carved out exceptions to this limited monopoly through the doctrine of fair use, which allows for the violation of these rights in certain circumstances and under specific conditions.
How long do these rights last? The Constitution only states that there must be term limits but does not specify the length of these limits. As a result, Congress has periodically changed the laws on how long a work may be protected.
A History Lesson in Copyrights
The first federal copyright law was enacted in 1790. Originally, only books, maps and charts were eligible for protection and the term was a mere 14 years, but with the option to renew for a further 14 years.
The next significant change in U.S. copyright law comes in 1976 (enacted in 1978) with what is generally called the 1976 Copyright Law. Among the changes to the law to modernize and come into parity with European laws, was the change in the term from two terms of 28 years to a single term of life of the author plus 50 years.
In 1989, the U.S. began to adhere to the terms of the Berne Convention, which means that registration of a copyright is no longer necessary to have copyright protection. Once a work is fixed in a tangible medium, it is protectable. Registration is still required prior to bringing a law suit for infringement.
Prior to that, in 1998, the copyright term of protection was extended under the Sonny Bono Copyright Law to life of the author plus 70 years. Congress also passed that year the Digital Millennium Copyright Act, which increased protection of works on the Internet or otherwise in digital form while also limiting the liability of Internet service providers. This is basically where the law stands today.
Just as the length of protection has changed over the years so has the list of items which can be protected. Protectable items now include but not be limited to; books, maps, charts, music, photographs, dramatizations, translations, unauthorized public performances of music, motion pictures, the recording and performance of non-dramatic literary works, audio book, sound recordings, paintings, drawings, sculptures, prints, computer software, digital media, etc.
Given the history and changing terms of copyright over the years, it can be quite confusing as to whether a work is free to use or must be licensed. Below are some examples that will guide you through the publication date to when the copyright term ends.
The easiest and most certain statement about copyright terms is that everything that was published or registered before 1923 is now in the public domain and may be used without fear of infringing anyone’s rights. After this date there’s a little math to do.
• Sole Authorship created on or after 1/1/78: The term is life of the author plus 70 years.
• Joint Authorship created on or after 1/1/78: The term is life of the last surviving author plus 70 years.
• Anonymous, Pseudonymous, and Work-for-Hire (corporate authorship) created on or after 1/1/78: The term is the shorter of either 95 years from publication or 120 years from creation. * Actual term varies based on creation and published date.
• Material Published Without Notice or Registration prior to 1/1/78: These items are automatically in the public domain for failing to follow the formalities.
• Materials Published and Registered Before 1923: In the public domain.
Our next post will continue the series on copyright. For more details or if you uncertain about what is best, contact a legal professional. For a free consult please send us an email.
Or you can purchase an eBook written by colleague Sarah Feingold: http://www.sarahfeingold.com/book/index.html.
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