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Digitization Projects: Does Your Library Have the Rights and Permissions It Needs?

May 27, 2002; Rev. April 15, 2004                      Return to LibraryLaw.com             

For a detailed discussion of copyright duration, see United States. Copyright Office. Circular 15a. Duration of Copyright: Provisions of the Law Dealing with the Length of Copyright Protection (rev. August 2000) at http://www.copyright.gov/circs/circ15a.html.

Charts

For readable charts that cover all years (including works published since 1978, which are not covered in this chart), see Cornell Institute for Digital Collections, When Works Pass Into the Public Domain in the United States: Copyright Term for Archivists and Librarians, first published in published in Peter B. Hirtle, "Recent Changes To The Copyright Law: Copyright Term Extension," Archival Outlook, January/February 1999, at http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm . It is based in part on Laura N. Gasaway's chart, When Works Pass into the Public Domain, at http://www.unc.edu/~unclng/public-d.htm. For a chart that looks at harmonization with the European Union, see Dennis S. Karjala's Chart Showing Changes Made by the CTEA and the Degree of Harmonization Achieved and Disharmonization Exacerbated by the Sonny Bono Copyright Term Extension Act at http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/legmats/HarmonizationChartDSK.html created May 15, 2002.

Legal Authority

37 C.F.R. Sec. 201.39 (2001) Notice to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable Price at http://www.copyright.gov/title37/201/37cfr201-39.pdf

17 U.S.C. Sec. 107 Limitations on exclusive rights: Fair use at http://www4.law.cornell.edu/uscode/17/107.html

17 U.S.C. Sec. 108 Limitations on exclusive rights: Reproduction by libraries and archives at http://www4.law.cornell.edu/uscode/17/108.html

Notes:

1922 FREEZE: The Sonny Bono Copyright Term Extension Act added twenty years to copyright terms. Public Law 105-298, 112 Stat. 2827 (1998). This explains why works published after 1922 are "frozen" until 2019. Works published in 1922 and earlier had already gone into the public domain at that time the law went into effect in 1998. This Act was upheld by the Supreme Court  in Eldred v Ashcroft, 537 U.S. 186 (2003) at http://www.supremecourtus.gov/opinions/02pdf/01-618.pdf . For more information see http://eldred.cc/

FOREIGN WORKS: Although works that fall into the public domain have not had their copyrights restored by the Bono Act, it should be noted that some foreign works have had their copyrights restored under the Uruguay Round Agreements Act (URAA). Works from certain countries that did not comply with formalities of U.S. law were restored as of January 1, 1996. For more information, see United States. Copyright Office. Circular 38b, "Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA-GATT)," at http://www.copyright.gov/circs/circ38b.pdf Additionally, libraries in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands should note that a controversial 1996 ruling in the US Ninth Circuit may imply that certain foreign works published between July 1, 1909, and December 31, 1922, are still subject to copyright, if they had neither been published in the US, nor published with a copyright notice recognized by US law, prior to 1923. Twin Books v. Walt Disney Co., 83 F. 3d 1162 (9^th Cir. 1996).

UNPUBLISHED WORKS - NONE UNTIL 2003: An unpublished work that was not registered with the Copyright office had perpetual copyright under the common law. The Copyright Act of 1976 ended perpetual copyright and gives these works the same terms as published works since 1978. However, the Act also gave a grace period that ends December 31, 2002. This is why the chart says "NONE" before 2003. Additionally, if an unpublished work was published by December 31, 2002, the copyright does not expire before December 31, 2047. 17 U.S.C. Sec. 303 (2001).

WORKS PUBLISHED SINCE 1978: For works published 1978 and later, the term is for the life of the author plus 70 years for natural persons. Works by corporate authors and anonymous authors remains the same: 95 years from date of publication or 120 years from date of creation (whichever is less).

RENEWALS: Copyright renewals were necessary for works published or registered before January 1, 1964. Works at that time had a 28 year copyright term, which could be renewed. Less than 10% of all copyrights were renewed and fewer than 5% of copyrighted books and pamphlets were renewed during that period according to a 1961 Copyright Office study. James J. Guinan Jr. Duration of copyright. In Copyright law revision. Studies prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, 86th Congress, first [-second] session, 8. Washington, D.C.: U.S. Govt. Print. Off.: 1961, cited in Demas and Brogdon.

RENEWAL SEARCHES: To find out whether a particular work was renewed, see United States. Copyright Office. Circular 22. "How to Investigate the Copyright Status of a Work" (Rev. June 1999) at http://www.loc.gov/copyright/circs/circ22.html. Also see Circular 15. "Renewal of Copyright." (Rev. June 1999) at http://www.copyright.gov/circs/circ15.html. For works registered since 1978, an online search site is available at the United States Copyright Office at http://www.loc.gov/copyright/rb.html/. A good description of this involved process is given in Demas and Brogdon. For a helpful personal description of the process, plus a link to personally scanned in copyright renewal records, see John Mark Ockerbloom, The Online Books Page FAQ at http://digital.library.upenn.edu/books/renewals.html.

LIBRARY EXCEPTION: First, note that this exception does not apply to musical works, pictorial, graphic or sculptural works, nor to motion pictures or other audiovisual works other than audiovisual works dealing with news. The exception reads:

"(h) (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.

(2)No reproduction, distribution, display, or performance is authorized under this subsection if -

(A) the work is subject to normal commercial exploitation;

(B) a copy or phonorecord of the work can be obtained at a reasonable price; or

(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

(3)The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.

(i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e)." 17 USC Sec. 108

See also 37 C.F.R. Sec. 201.39 Notice to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable Price, and United States. Copyright Office. Notice to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable Price. at http://www.loc.gov/copyright/docs/nla.html.  

WORKS MADE FOR HIRE: Works Made for Hire are works (1) prepared by an employee within the scope of his or her employment; or (2) specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For more detail, see United States. Copyright Office. Circular 9, "Works Made for Hire under the 1976 Copyright Act," at http://www.copyright.gov/circs/circ9.html.

AUTHOR'S DEATH UNKNOWN: Presumption as to Author's Death. After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report is entitled to the benefit of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title. 17 USC Sec. 302(e) (2001).

TERMS END DECEMBER 31 EACH YEAR: Copyright terms expire at the end of the calendar year in which they are due to expire. Thus a copyright actually can last, for example, 95 years and 5 months. 17 U.S.C. Sec. 305 (2001).

FOR WORKS STILL UNDER COPYRIGHT- GET PERMISSION. If you can track down the copyright owner (see United States. Copyright Office. Circular 22."How to Investigate the Copyright Status of a Work" (Rev. June 1999) at http://www.loc.gov/copyright/circs/circ22.html), get permission. See Georgia Harper, University of Texas. Copyright Crash Course. Getting Permission http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm

See also

Samuel Demas and Jennie L. Brogdon, "Determining Copyright Status for Preservation and Access: Defining Reasonable Effort," Library Resources and Technical Services 41:4 (October 1997): 323-334. (not posted to the Web).

Peter Hirtle, "Unpublished Materials, New Technologies, and Copyright: Facilitating Scholarly Use," Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protections of Intellectual Property," The Ohio State University College of Law, Columbus, OH. March 8-10, 2001. http://cidc.library.cornell.edu/Pub_files/Hirtle_OSU_paper.pdf Cited with permission by the author.

© 2002-2004 by Mary Minow Some Rights Reserved. This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/1.0/ or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford California 94305, USA.

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