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January 04, 2009

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But didn't the Berne convention specifically address this?

Esther, the Twin Books decision has come in for much derision in other courts, and many feel that the passage of the law that became Section 104(a) of the Copyright Act was an explicit recognition by Congress that the 9th Circuit had gotten it wrong. In the decision, the Appeals Court recognizes that Twin Books has been attacked, but refuses to change their reasoning. That is what I find troubling.

Klaus, good observation. The problem may be with my chart, and we are going to fix it with the 2009 version that should be up this week. In the new version, have removed the dates for unpublished works published between 1978 and 2003 from the unpublished section since these works are published, not unpublished. All published works start as unpublished works, so it was a mistake to single out these 25 years. Instead one should remember that the dates for unpublished works apply only to those works that have never been published.

In the case of the ancient work, the Court was saying that in the 9th Circuit, the work was unpublished in the 9th Circuit even though it may have been "published" in classical Greece. If someone discovered one of Aristotle's lost manuscripts that had been previously distributed in the classical world and published that manuscript in the US today, it would be in the public domain because of life +70. If it had been published between 1978 and 2003, it would be copyrighted until 2047. And if it had been published in 1977 (with proper notice), it would be copyrighted until 2073. But both of these are still limited terms, and eventually Aristotle would be in the public domain. So the court is saying that it is not ridiculous to think that ancient manuscripts in say 1995 could still have been copyrighted (as unpublished works) because eventually the works would enter the public domain.

Esther, the Twin Books decision has come in for much derision in other courts, and many feel that the passage of the law that became Section 104(a) of the Copyright Act was an explicit recognition by Congress that the 9th Circuit had gotten it wrong. In the decision, the Appeals Court recognizes that Twin Books has been attacked, but refuses to change their reasoning. That is what I find troubling.

And you are right - failing to include a copyright notice or incorrectly formatting it under the 1909 Copyright Act would inject items into the public domain. Most people assumed that a foreign work published without a copyright notice was therefore in the public domain. Twin Books said no. In spite of the fact that the book was printed, listed a publisher, and was sold in a foreign country, for purposes of American copyright law it was unpublished.

Can you explain the following (from the decision):

"While an ancient work may be protected today under
the ruling of Twin Books, the term is not limitless. Instead, the
copyright term for a newly discovered ancient work that is not
in the public domain or copyrighted would be limited to a
finite term of seventy years after the death of the last author,
§§ 303(a), 302(a), (b), or December 31, 2047, whichever is
later". In your chart this is only the term for unpublished works created before 1978 that were published after 1977 but before 2003. Many thanks!

Does this decision conflict with prior decisions? For example if someone inadvertently left off the copyright date or it was incorrectly formated, then work entered the public domain. I remember reading of such cases.

Further, how can an opinion like this be retroactively applied to all works. If works have been assumed to be in the public domain for decades and then all of sudden they are not, that will create a lot of confusion about the public domain. One could rightly question if the public domain even exists anymore?

This opinion has a lot of very serious implications. Thank you for writing about it.

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