LibraryLaw Blog

The myth of the pre-1923 public domain

A truism in American copyright is that works published in the US prior to 1923 are in the public domain.  My copyright chart says it, so does Lolly Gasaway's, and the Google Book Settlement works on this assumption. 

By and large this is true.  Up until 1998, the longest term that a work could receive was 75 years.  That mean that works published in 1922 entered the public domain on 1 January 1998.  Later that year the Sonny Bono Copyright Term Extension Act added twenty years to the term of works that were still protected by copyright, but it did not restore copyright in works that had already entered the public domain.

But things are never clear in American copyright.  I was re-reading Robert Brauneis's justly-praised essay, "Copyright and the World's Most Popular Song."  In it, Brauneis argues that "Happy Birthday," which generates perhaps $2 million a year in licensing fees, is actually in the public domain.  In order to make his case, he undertakes a thorough review of copyright under the 1909 Copyright Act.  Brauneis notes almost in an aside that "Happy Birthday" was published in 1912 in "The Beginners’ Book of Songs" and again in 1915 in "The Golden Book of Favorite Songs."  A library might think that since these editions predate 1923, they could be digitized with impunity.

According to the current owners of the presumed copyright in "Happy Birthday," however, these early publications were unauthorized.  They argue that the first authorized publication of the lyrics to "Happy Birthday" occurred in 1935, and copyright runs from that date.  Digitizing either the 1912 or 1915 volumes would therefore infringe on the copyright first secured in 1935.

As a practical matter, there would likely be little risk in digitizing any pre-1923 edition of a work.  The presumed copyright owner would have to establish with certainty that an authorized publication occurred at a later date.  As time passes, it becomes harder and harder to document authorship of earlier works, and so the likelihood of a complaint or suit diminishes.  But there is a big difference between saying "this is in the public domain" and "this may be copyrighted, but there is little chance that I wll be sued."

In short, just because a work was published in the US prior to 1923 does not mean it is in the public domain.  The first authorized publication needs to have occurred before that date.  This is just one more example of how hard it is to establish with certainty the copyright status of a work.

Child and Family Safety in the Library - workshop at Santa Barbara Public Library Wed June 24

Black Gold Cooperative Library System is sponsoring a workshop on Child and Family Safety, next Wednesday from 10 to 4 pm at the Santa Barbara Public Library (Faulkner Gallery). FamilySafetyFlyer

We'll be talking about how to handle difficult situations, when to report suspected child abuse, when to call the police and what to say.

Instructors:

Mary Minow, LibraryLaw.com

Ann McCarty, Associate Director North County Rape Crisis & Child Protection Center

Deborah Holmes, LCSW, Associate Director, CALM (Child Abuse Listening & Mediation)

Officer Scott Klacking, Beat Coordinator/Background Investigator, Santa Barbara Police Department

Finding legally safe music and videos for presentations, blogs and podcasts

For California library folks - join us live at the Infopeople webinar Wednesday
Jun 17, 2009  12pm-1pm PDT Finding (Legally Safe) Music and Videos for Presentations, Blogs and Podcasts

Anyone else is welcome to view it later as an archived event.

Your library has been creating content for websites and blogs for years, and now it�s moving into adding sounds, songs and video. You know just what type of clip you want, but have an uneasy feeling about its copyright status. Do you have a right to use it? Is there podsafe content you can use?

This webinar will help you analyze the legal rights attached to sounds, songs and video you find online and offline. It will walk you through safer approaches to using audiovisual content you want to use to make your podcasts sing!

At the end of the presentation, participants will be able to:

• Understand the concept of podsafe music and sounds
• Identify at least three good sources
• Be familiar with best practices in evaluating Fair Use when using video and audio
• Know what to ask for when requesting permission from copyright owners

This webinar will also be of use to reference staff who field questions from the public about copyright issues.

UPDATE: Deaccessioning in New York State

The good news: I assume in reaction to the concern expressed by museums, zoos, and libraries, the bill governing deaccessioning from museums was pulled from the Ways and Means committee's calendar on Tuesday.  I gather that staff from Assemblyman Brodsky's and Senator Serrano's offices have begun discussions with some concerned community representatives.

The bad news: An amended version of the bill is circulating in Albany.  This bill makes it crystal-clear that it does not just cover museum deaccessioning, but would cover deaccessioning from "collecting institutions" - meaning libraries, archives, historical societies, zoos, and private foundations. 

In spirit, the revised bill is acceptable.  It recognizes that there are times when a collecting institution may wish to remove an item from its collections.  Those reasons include:

• The item is inconsistent with the mission of the collecting institution as set forth in its mission statement;
• The item has failed to retain its identity;
• The item is redundant;
• The item's preservation and conservation needs are beyond the capacity of the collecting institution to provide;
• The item is deaccessioned to accomplish refinement of collections as required by and/or stated in its collection management policy;
• It has been established that the item is inauthentic;
• The collecting institution is repatriating the item or returning the item to its rightful owner;
• The collecting institution is returning the item to the donor, or the donor's heirs or assigns, to fulfill donor restrictions relating to the item which the collecting institution is no longer able to meet;
• The item presents a hazard to people or other collection items.

(I might think of a few more, such as the item is missing or lost from the collection, but this is not a bad list.)

The law then says that if the collecting institution wants to deaccession or dispose of the item, it must first offer it for transfer or sale to another institution in New York state.  If no one wants it, it would then be offered to another collecting institution outside of New York. If they don't want it, then it can be sold on the open market.

The bill's proposed methods of implementing its goals are highly problematic.  Here are some issues:

1. It applies to all accessioned materials, and it governs material that you may want to discard.  Good professional practice requires that archives and manuscript repositories accession material upon receipt.  The material is then processed and unwanted material (including trash) is discarded.  This bill would require us to offer our trash to other institutions before we could get rid of it.
2. It may also not allow us to return unwanted material to the donor, even if the deed of gift stipulates this.
3. Proceeds from any sale of the item can only be used to acquire more material and/or for the preservation, protection or care of items in the collection.  The money cannot be used for "traditional and customary operating expenses."  But what about customary operating expenses that also serve to preserve and protect items in the collection?
4. Most troubling for small institutions is that they would have three years to publish a register of all accessioned items in the collection.  They would also have to publish a register of deaccessioned items.  This is a burdensome unfunded mandate.
5. Furthermore, the Board of Regents is required to construct a database that includes all items that a collecting institution wishes to deaccession.  Again, a huge procedural headache.
6. Institutions would also be required to write and publish a broad set of procedures and practices under the rubric of a "collection management policy."  I doubt if even the largest institutions have written procedures for all of the things specified in the bill.

Some will even argue about whether it is ever ok to deaccession material.  (You can follow some of the debates at the Deaccessioning Blog.)  If deaccessioning does occur, let's hope that we do not have to follow the well-meaning but problematic practices of A6959.