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.

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.

Why the Google Books Settlement is better than orphan works legislation

There has been a lot of talk by some of the critics of the Google Books Settlement (GBS) about how it gives Google a monopoly on orphan works.  But most of the commentators who have talked about orphan works and the Google settlement are sloppy in their language.  In this post, I want to clarify the language and then make a stab at some numbers.

There are two sets of books governed by the settlement.  First, there are the in-copyright but out of print books whose rights holders sign up with Google.  We can call these "active rights holders."  Second, there are the in-copyright but out-of-print books whose authors do not register with Google or the Books Rights Registry: the "inactive rights holders." 

Some like to call this second group "orphan works," but that is wrong.  This latter group actually consists of two separate groups.  First, there are rights holders who could be easily located but who have chosen not to sign up with the Registry.  Foreign authors whose works are normally protected by their national reproduction rights organization come readily to mind.  I suspect that many could not conceive that their works could be used without their explicit permission and so see no need to register.  Others may not learn of the settlement in spite of Google's advertising campaign.  Because these authors could be easily identified and located, however, their works are not orphan works.  The other portion of the "inactive rights holders" subset are the true orphan works: works whose copyright owners either cannot be located either because they cannot be identified or because their whereabouts are unknown.

The scope of the orphan works problem

Trying to come up with numbers is a very challenging task, but here is a quick attempt to get some ballpark figures.  First, we need to look at the potential scope of Google's database.  The Lavoie article on the Google 5 said that WorldCat contained 32 million print book records in 2005.  I think that number is too high because we know that there is a tremendous amount of duplication in WorldCat, but let's use it as the outside potential limits of the Google database.   Bowker's Global Books in Print reports 18.5 million book items in print, which leaves 13.5 million titles that are out-of-print.   (Since that is a current figure and would include books published between 2005 and 2009, it is probably too high - but I also suspect that there are many in-print foreign titles that are not included.  Let's use it.) 

Lavoie reported that there were 5.4 million titles that were out of copyright (pre-1923), so we are left with roughly 8 million titles that are potentially in copyright but out of print.  (Some of these would be American works that have not had their copyright renewed and hence are in the public domain, but I think the number could only be 150,000 1.7 million at most, and so I am going to ignore that).

[UPDATE: So I got a good question about the number of works that might have entered the public domain that pointed out that my original number is wrong.  Here is my thinking: of the 8 million books, half are in English (following WorldCat numbers) and hence are likely to be American works.  (I won't worry about books published only in England.)  Of those 4 million, 63% according to Lavoie are after 1963, and still protected by copyright.  That leaves 1.9 million works published between 1923 and 1964.  A 1961 copyright study suggested that maybe 9% of these works were renewed and still protected by copyright, though recent work by Michigan indicates that 41% of the works are still protected by copyright.  If we assume 90% are public domain, then 1.7 million works are public domain.  If 59% are PD, then 1.1 million are PD.  Let's call it 1.5 million - and the number of in-copyright but out of print works should drop from 8 million to 6.5 million.]

So we are talking about 8 [6.5] million works published since 1923 that are in copyright but out of print.  Of those, how many are going to have inactive rights holders?  What percentage of authors are going to register with Google, and what percentage will ignore the call?  Or if we look another way - what percentage of these works are true orphans?

Denise Troll Covey's numbers might provide some guidance.  In CMU's random trial, she was unable to locate 21% of publishers.  (There random sample was not limited to out-of-print books, so the percentage might actually be too low.)  If we assume that number would hold on the 8 [6.5] million, that would mean that we have about 1.7 [1.4] million true orphan works in the total database of 13.5 [12] million.  (That number might actually be smaller since some rights holders other than publishers might come forward via the settlement.)  The remaining 11.8 [10.6 ] million books would either have rights holders who registered with Google or who choose not to register. 

Even with orphan works legislation, these works would not be eligible for inclusion in a digitized books database since they are not true orphans.  The Google Books settlement is the only way to get cost-effective access to them. 

What we need in the settlement is a compulsory license that would allow anyone to license the use of a work maintained by a non-active rights holders, and not just orphan works.

Retraction: More messiness with copyright duration of foreign works

A few days ago I posted on the impact that the establishment of copyright relations with the United States after 1998 could have on the term of restored copyright for those works.  My posting was prompted by an example in Stephen Fishman's excellent new treatise, "Copyright and the Public Domain."  After reading an example, I concluded that a work published abroad before 1923 could still be protected by copyright because they would get a 95 year copyright term. 

Fortunately in the world of social networking there are lots of people out there who are smarter than I am.  In the comments on the post, Lupo questioned my reasoning, and of course he is right.  Works published before 1923 got at most a 75 year term of restored copyright regardless of when they established copyright relations with the US.  They are all in the public domain.  Works published after 1922 in the countries listed in my previous post would receive a 95 year term of copyright.  So for example, a 1923 work published in Nigeria, which established copyright relations with the US in 1999, would be protected by copyright through 2018 [corrected from 2038].  My deep thanks go to Lupo for challenging me.

I still have to update the copyright chart to properly account for the difference between a 75 year term in 1996 and a 95 year term in 1998 - but that is a different issue than the one I raised before.

More messiness with copyright duration of foreign works

RETRACTED, 14 May 2009.  See this entry.

I've written before about how the restoration of foreign copyrights has made it very difficult to determine the copyright status of many works.  Here is another problem that is going make the copyright duration chart much messier the next time I revise it.

In the chart, I state that works published abroad before 1923 are in the public domain (though the chart does recognize the contradictory court decisions in the 9th Circuit that could extend protection back to 1909).  I wrote the chart this way on the assumption that on 1 January 1996, when most foreign copyrights were restored, they got a 75 year term.

Two things have happened since 1996, however.  First, copyright term was extended by 20 years in 1998.  Second, some countries have established copyright relations with the US through one of four means:

• Membership in the Berne Convention
• Membership in the World Trade Organizatin
• Adherence to the WIPO Copyright Treaty
• Presidential proclamations

It looks like there are 23 countries that have established copyright relations with the US since 1 January 1998.  They are:

• Algeria
• Andorra
• Armenia
• Azerbaijan
• Bhutan
• Cambodia
• Comoros
• Jordan
• Kazakhstan
• Korea, Democratic People's Republic
• Kyrgyz Republic
• Micronesia
• Montenegro
• Nepal
• Oman
• Samoa
• Saudi Arabia
• Sudan
• Syria
• Tajikistan
• Tonga
• Uzbekistan
• Vietnam

Publications that are still protected by copyright in the home country when copyright relations with the US were established would have a 95 year term in the US (assuming the relations are established after 1 Jan. 1998).  That means that works published from 1914 to 1923 in these countries would still be protected by copyright in the US, in spite of what the chart says.

The numbers I don't believe are large.  For example, WorldCat shows just 5 books published in Vietnam between 1914 and 1923, and 6 from Tonga.  Nevertheless, it is just one more messy exception that conscientious copyright investigators must build into their procedures - and that I need to include in the next edition of the chart. 

Google Book Settlement, orphan works, and foreign works

Much of the emerging criticism of the Google Book Settlement is focusing on the fate of "orphan works" in it.  Pamela Samuelson in her forthcoming ACM article on the settlement notes that "the settlement would, in effect, give Google the exclusive right to commercially exploit millions of orphan books."  The Internet Archive's request to be a defendant in the suit states that the proposed settlement "effectively limits the liability for the identified uses of orphan works of one party alone, Google Inc."  James Grimmelmann notes that "Google’s extraordinary market power under the settlement will come from its unique lock on orphan works."  But by focusing on orphan works, these critics downplay the impact on the real losers in the settlement: the thousands of foreign authors whose books can be exploited with impunity by Google and the Books Rights Registry.

A common assumption among the critics of the settlement is that there are two classes of rights holders.  The first are those who come forward and register with the Registry - what were called "active rightsholders" at the Columbia conference on the settlement.

The other class of rights holders are those who fail to opt-out of the settlement and also fail to register with the Registry.  The existence of these rightsholders is therefore unknown to either Google or the Registry.  It would be a mistake, however, to equate in-copyright but out-of-print works owned by these non-active rights holders with orphans. 

Orphan works are those works whose copyright owner cannot be located, either because the current owner cannot be identified or cannot be found.  There are many books that would be included in the Google settlement that are true orphans.  There are many more, however, whose copyright owners are eminently locatable - but who aren't participating in the settlement.

The largest group of non-active rights holders are likely to be foreign authors.  In spite of Google's efforts to publicize the settlement abroad, I suspect that most foreign rights owners of out-of-print books will fail to register with the Registry.  There are a couple of reasons for this.  For one, they may not know that their book is still protected by copyright in the US.  In addition, they may assume that international network of reproduction rights organizations would manage their royalties, and not understand the need to register separately. 

The scope of the foreign land grab could be considerable.  Some initial estimates suggest that 7 million books could be included in the settlement.  Of these it is estimated that 1 million are in the public domain.  That would leave 6 milllion in-copyright but out-of-print books.  Early efforts to try to understand the nature of the library collections that were being used to build the Google books database suggested that 50% of the works in the libraries were not in English, so it would be safe to say that at least 3 million of the books in the settlement will be foreign works.  (Since Google added many European partners after this study was done, the number is likely to be much higher.)  Some of these are going to be orphan works - but many more are going to have easily locatable rights holders that have chosen not to be active participants in the settlement.  Their royalties are destined for the pockets of the Registry.  I am willing to bet that a goodly percentage of the operating expenses of the Registry will come not from orphan works, but rather from foreign authors who do not understand the need to participate in the settlement.

Pamela Samuelson has questioned the representativeness of the defendants in the settlement.  If there is an injustice being done in the settlement, it is with foreign authors. 

Important news on pre-1972 sound recordings

One of the oddest elements in the Copyright Act is the absence of federal protection for sound recordings made before 1972.  They are instead protected by state common law copyright until at least 2067.  This leads to some odd actions, such as Nancy Sinatra last year testifying last year in a hearing on the need for a performance right on radio - even though most of her songs (and those of her father) would not be eligible for any royalties.

The process to address the anomaly regarding the copyright status of sound records has begun.  Thanks to the remarkable work of the Association of Recorded Sound Collections (ARSC) and its partner, the Historical Recording Coalition for Access and Preservation, the recently-signed omnibus spending bill, H.R. 1105, includes a provision about sound recording copyrights.  The Explanatory Statement that accompanies the bill directs the Register of Copyright:

to conduct a study on the desirability of and means for bringing sound recordings fixed before February 15, 1972, under federal jurisdiction. The study is to cover the effect of federal coverage on the preservation of such sound recordings, the effect on public access to those recordings, and the economic impact of federal coverage on rights holders. The study is also to examine the means for accomplishing such coverage. As part of this effort, the Register of Copyrights should publish notice of the study and provide a period during which interested persons may submit comments. The Register of Copyrights is to submit a report on the results of this study to the Committees on Appropriations of the House and Senate no later than two years after the enactment of this Act. The report should include any recommendations that the Register considers appropriate.

It is perhaps unfortunate the study needs to go to the Committees on Appropriations (rather than Judiciary); this could lead to the same type of "turf" complaint that Rep. Conyers has raised in support of the deceptively-named "Fair Copyright in Research Act."  Nevertheless, this is an important step forward that will be of interest to all librarians and archivists with sound recordings in their collections.  If the report that is produced is half as good as the earlier study on orphan works, important progress will have been made.  ARSC has done a great job.

The Google Book Settlement and the Public Domain

Shortly after the Google Book Settlement was announced, a colleague wrote to ask what I thought of its procedures for identifying public domain books.  I gave a quick response, but promised a more detailed analysis.  Here it is, months later. 

My quick assessment: the settlement specifies procedures that are likely to identify most public domain works published in the United States.  It is less helpful for foreign publications that may have entered the public domain; they are largely absent from the process.  Unfortunately, because this is part of litigation rather than legislation, no one else can take advantage of the results of the process - it moves us no closer to having a growing public domain.  What is unknown is to what extent Google will want to remove titles from the licensed products and make them freely available to the public.

Settlement in Marketing Information Masters v. California State University - a follow-up interview with Jonathan Pink on copyright and sovereign immunity

From the Fairly Used Blog

For background, see Jonathan Pink interviews: District Court Invalidates Portion of Copyright Act as Unconstitutional; Holds State University and Employee Immune From Claim for Copyright Infringement (April 15, 2008) and Follow up questions on state university copyright immunity case - Marketing Information Masters v. Trustees of the California State University (April 23, 2008)

Minow: Can you tell us about the settlement in the Marketing Information Masters case?

Pink:  Sure. The parties ultimately settled for $15K.  The settlement was negotiated by my former partner because I moved firms just after filing the final motion that led to the court knocking out nearly everything that remained after we invalidated Section 511 of the Copyright Act.  I had given the school a really low rate at my old firm, and unfortunately I could not keep them at that rate after the move, so I had to hand the case off.  Nonetheless, I teed it up for settlement before I left by obtaining the court-ordered dismissal of nearly every claim, and by limiting plaintiff's possible win to about $5,000.  Even though the final settlement was 3X that number, and I think the school over paid, my client wanted to be done with the law suit and what they paid in settlement they saved in fees. Overall, still a good result.

Minow: Why such a low settlement?

Pink: Ultimately, the reason the settlement was so low all tracks back to the ruling you first wrote about, and then a follow up motion we filed that knocked out still more claims.  That is, first we invalidated the plaintiff's right to sue a state university for copyright infringement and assorted other claims, then we drastically whittled down the claims this plaintiff asserted against Professor Rauch .  After that, the facts in this case simply did not support big damages.  We were able to show that plaintiff never made more than $15,000 when it previously sold its report to the school, and it didn't lose the sale of report at issue because the plaintiff had refused to prepare that report for the school unless they were paid a lot more money.  Bottom line was that I thought we could have shown almost no damages, so we made a statutory offer of about $5000.  When the plaintiff failed to accept that offer, he was stuck because, unless he was able win more than that at trial, he would have ended up paying our attorneys fees.  It was a gamble, but I thought we were holding the better hand.  Although I wasn't involved in the final settlement talks because I moved firms, I understand that these tactics - and my former partner's negotiating skills - allowed the client to close the case for nearly nothing.

Minow: Now here's the key question. Can individual professors be held liable for copyright infringement even when they follow university copyright policies?

Pink:  That is the key question, but because this case never went to trial, we can't answer it with certainty.  The qualified answer is probably not, but it will be a question of fact as to whether the professor followed the university's copyright policies.  In this case, the facts giving rise to the claim for infringement arose out of the conduct of an intern who was a visiting foreign student.  The professor never knew that the student had copied text, and moreover, went of his way to correct that once it was brought to his attention.  Of course, there is an argument that he should have known by more closely supervising the work.  So did he follow the copyright policy of the university sufficiently to avoid liability?   We don't know.  But it was worth $15K not to put that question to the test.

===========

Jonathan Pink is a member of the Intellectual Property Group at Bryan Cave , LLP.  His practice focuses on high stakes copyright, trademark, trade secret and patent litigation.  He can be reached at jonathan.pink@bryancave.com

Google Books Settlement at Columbia: Part 2

The morning keynotes were followed by three panel discussions on "The Future of 'Books'"; "Authors and Incentives"; and "The Public Interest."  A panelist would be asked a question and given 2 minutes to respond, and a new question-would be posed to the next panelist.  After two rounds of questions and a general free-for-all among the panelists, the discussion was thrown open to the floor.  This makes it hard to summarize the information in any one panel, especially since the questions were huge: "Professor Darnton: summarize your long, thoughtful NYRB essay in 2 minutes..."  Instead, I will pick and chose among some of the themes that emerged from all the discussions.