When is a published work not a publication?

It is easy for court decisions that are issued in December to get overlooked in the holiday crush.  Some Appeals Court rulings in the important case of Societe Civile Succession Richard Guino v Renoir are good examples.  Rebecca Tushnet has written on the trademark aspects of the decisions, but I haven't seen a discussion of the copyright decision.  This is an important ruling that has implications for many mass digitization projects.

The case concerns sculptures created in France by Pierre-Auguste Renoir and published in France no later than 1917.  Most commentators (including the Copyright Office) argue that because publication occurred before 1923, the works are now in the public domain in the U.S.  As I discuss in footnote 12 of the copyright duration chart, however, a ruling in the Twin Books v Walt Disney case in the 9th Circuit (covering the western states) contradicts what everyone else assumes.  In Twin Books, the court concluded that if a foreign work did not follow the requirements to secure copyright protection in the US, the work did not therefore enter the public domain in the US, but instead remained in effect unpublished for the purposes of US copyright law. 

The District Court opinion in the Societe Richard Guino case harshly criticized Twin Books, but then found copyright infringement because it was forced to follow the opinion of its Appeals Court.  Many of us hoped that an appeal would lead to a reversal of the Twin Books decision.  Unfortunately, in the latest decision, the Appeals Court upheld the lower court's finding of infringement.

The good news, if there is any, is that in part the decision is based on the fact that a 3 judge panel can't overturn Twin Books by itself - it requires a decision by the full court.  What is disturbing, however, is that unlike the District Court, there is no criticism of Twin Books in this decision.  Instead the Court sings the praises of Twin Book's reasoning that a book that has only been published abroad isn't really published for the purpose of US copyright law. 

What are the implications of this for digitization projects, especially those based in California (such as Google Books or the Internet Archive)?  The decision makes it much, much harder to determine whether a book published abroad is in the public domain.  I have written about how difficult it is to determine whether any individual post-1923 title had its copyright restored, but I assumed that pre-1923 works were public domain and that Twin Books would eventually be reversed.  The newest ruling makes me less certain this will happen.

So what do Google, the Internet Archive, and other western digitization projects need to do if they do not wish to risk copyright infringement?  First, the projects would need to determine if the works were ever published with a copyright notice.  For the 9th Circuit, publication occurs (and the copyright clock starts ticking) when there is publication with notice.  In the Societe Richard Guino case, copyright in the images found in the 1917 book was secured in 1984.  Copyright in those images will endure until 70 years after Guino's death in 1973, or through 2043.  Reproducing and distributing the 1917 book before 2044 would be a violation of the Societe's copyrights. 

Second, the projects would need to see if the work was published in a Berne Treaty nation after 1 March 1989, when notice requirements were abolished.

Third, for those pre-1923 works that were never republished with a copyright notice or after 1 March 1989, the projects could determine the death date(s) of the author(s).  If the authors all died before 1939, the works would be in the public domain in the 9th Circuit since, as "unpublished" works, the life+70 term would have expired.  (Actually, any foreign work that was never republished and whose author died before 1939 would be in the public domain in the 9th Circuit, regardless of death date.)

Obviously, no project will be able to conduct this sort of copyright investigation.  The safest course, therefore would be to select a date before which there is almost no chance that an author is still alive.  Some UK projects (which have a blanket life+70 term) use 1868 to 1888 as the cut-off publication date, on the assumption that authors are probably at least 20 when their books appear, and then one estimates a subsequent life span to determine when the author is sure to be dead.  (If you assume someone lives to 70, you can use the 1888 date.  If you think the author will live to 90, then the 1868 cutoff must be used.)  The problem, of course, is that this excludes much more material than the 1923 publication cut-off date that many of us use.

Bottom line: let's hope that this decision is appealed to the full Appeals Court, and that court finally replaces it's twisted logic in Twin Books with the clear certainty of copyrights restored under 104(a).

Comments

[popo]

But didn't the Berne convention specifically address this?

[darkfall online gold]

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.

[Peter Hirtle]

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.

[Peter Hirtle]

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.

[Dr. Klaus Graf]

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!

[Esther]

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.