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« Virginia Makes the Google Settlement Better for Libraries | Main | The search for the oldest copyrighted work in the U.S. goes on »

March 28, 2010

Comments

Preface: yes, I'm responding to a thread from five years ago. I know that.

I may have found something far older that's still under copyright. I was trying to research the copyright status of something in order to justify it's inclusion as public domain, and eventually realized it wasn't.

Rabbi Shlomo Yitzchaki (better known as Rashi) lived in France from 1040-1105. During that time he wrote many letters in response to questions which were sent to him. They were never published during his lifetime (keep in mind this was several hundred years before the printing press). Many ended up in libraries and other collections. In the early part of the 20th century Menachem Mendel Kasher visited many libraries, collected the letters, and published them in a book which was published in 1925. Kasher was Israeli, and the book was published in Israel, so his work is governed by Israeli copyright law, which is life of author + 70 years. Kasher passed away in 1983. so the work will enter the public domain in 2053. Unbelievable.

AW -- It is my understanding that it is possible to have copyright restored to a work that was PD. But it also my understanding that any derivative works created while the work was PD are not affected. (I am not a lawyer).

JE, the copyright chart at http://copyright.cornell.edu/resources/publicdomain.cfm states that the first grouping applies to "Never Published, Never Registered Works." The Adams diary, even though it looks unpublished, was published. So this moves it into the "published" part of the chart.

So this story tells us two things:

1. Just because a work was created before 1923 does not mean it is in the public domain.
2. Just because a work exists in manuscript form does not mean that it has not been published - and the copyright dates from the date of publication.

Is there an Adams document with a longer term of protectection?

I think AW's confusion comes from the fact that this concept of common law copyright for unpublished works is not mentioned anywhere on the public domain chart. The chart http://copyright.cornell.edu/resources/publicdomain.cfm as well as the Public Domain Slider at http://librarycopyright.net/digitalslider says unpublished works are in public domain for works whose authors died more than 70 years ago. Just wanting to clarify.

They were protected by common law copyright, and that common law copyright was perpetual. As soon as an unpublished work was published with the proper copyright notice, Federal copyright took over.From 1964 to 1966, you had state common law protection.


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Tim Padfield has reminded me that in the UK, unpublished works created by authors who died before 1969 are still protected by copyright and will be through 2039 at the earliest. This is similar to US law, except that many unpublished works in the US entered the public domain in 2003, not 2039.

He also notes that it was Michael Heaney of the Bodleian Library who identified Jessie Saxby's and Dame Sarah Muir's pieces as the oldest copyrighted published works in the U.K.

AW, unpublished works were not in the public domain in 1978. They were protected by common law copyright, and that common law copyright was perpetual. As soon as an unpublished work was published with the proper copyright notice, Federal copyright took over. The 1978 Copyright Act changed this. It provided Federal copyright protection to unpublished works created before 1978, but no copyright expired before 2003.

Think of it this way: Imagine you are an author who wrote a novel in 1964 that was finally published in 1966. From 1964 to 1966, you had state common law protection. In 1966, you received federal protection that would last for 75 (now 95) years from the date of publication - not the date of creation. The same thing holds for the Adams diary, except that the gap between creation and eventual publication is much longer.

I'm confused on what is probably an obvious point.

According to http://copyright.cornell.edu/resources/publicdomain.cfm , unpublished works are age of author + 70. Now, obviously you are treating this as a published work. How does this work? The unpublished data would have long expired by the time it was finally published. How can it not have been in the public domain in 1978? (Even assuming that the unpublished + 70 was post-1978, surely there was something similar in 1978 that would have treated anything written 200 years previous in the public domain, even if unpublished, no?

You cannot take something that is in the public domain (by means of expiration) out of the public domain just by publishing it for the first time, can you?

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