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.
Thank you for your reply, Peter. You write: " Everyone assumes, however, that they [the restored works] are also due the extensions granted during the course of their copyright history." I agree- but only insofar as the normal copyright they'd have gotten didn't expire "naturally" before a particular extension became effective.
I think one has to "replay" copyright history to calculate the term of the restored copyright: initially, a 1919 work would have gotten at most 2 * 28 years, scheduled to expire 1975. But then it would have benefited from the amendments starting in 1962, which prolonged the renewal term until 1976-12-31, and then it would also have profited from 17 USC 304(b) (in its original 1976 wording) extending the whole copyright term to 75 years since the original publication. But that's it; by 1998, these 75 years would have expired. If the restored copyright term starts running at the date of the original publication of the work, a pre-1923 work would not benefit from the 1998 extension, whereas a work published 1923 or later would.
I'm looking forward to learn what your copyright betters have to say on this.
Posted by: Lupo | May 12, 2009 at 02:22 PM
Lupo, thanks for the thoughtful comments. You are quite right to point out that works that had entered the public domain in their home country at the time of the establishment of copyright regulations with the US would not be subject to restoration. It is just one more complicating factor in trying to determine whether a work is in the public domain.
As for why I think these works would get a 95 year terms, I read the law to say that the copyright term is the term at the time of restoration - and not the copyright term at the time of publication. If the latter was the case, then most restored works would have a 56 year term, since that was the possible term at the time of initial publication (two 28 year terms). Everyone assumes, however, that they are also due the extensions granted during the course of their copyright history.
Still, you have led me to believe that I should confirm my reading with some of my copyright betters. I will report back.
Posted by: Peter Hirtle | May 08, 2009 at 06:00 PM
Note that most of these countries have a copyright term of 50 years; as far as I can make out, only Andorra and Montenegro have 70 years. For all the other countries, this purported restoration would not concern works of authors who died more than 50 years before the establishment of copyright relations with the U.S.
But I don't quite see why authors from these countries should get a 95-year U.S. term for restored copyrights on their pre-1923 publications. 17 USC 104A says restored copyrights "subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States." I believe the latter part must be read in conjunction with 104A(h)(6)(C), which says the restorations apply only to works that were in the public domain in the U.S. due to failure to conform with U.S. formalities (registration, renewal, and the like), due to being a pre-1972 sound recording, or due to lack of national eligibility.
Consider e.g. a Vietnamese author who published a book in Vietnam in 1919 and who died after 1948. The URAA date for Vietnam is 1998-12-23. Assume the work was still copyrighted in Vietnam on that date. (I don't know what the historic copyright laws of Vietnam -- if such a thing existed at all -- said; if the historic terms in Vietnam were shorter and the current Vietnamese copyright law with its 50-year term did not re-copyright works on which earlier terms had already expired, it's possible that even more works would not be eligible to restoration. Using the current 50-year term gives a worst-case scenario.) Now what copyright term would that work get if its copyright were to be restored by 17 USC 104A? If Vietnam had been an eligible country, and the author had complied with all formalities, he would have gotten at most 75 years. His work would have been quite naturally in the public domain in the U.S. in 1998, when the term extension to 95 years took effect, and hence it would not have benefited from that extension. As a result, 104A might "restore" the work and then immediately put it in the public domain in the U.S. again because its normal U.S. copyright term had already expired. Hence 1923 remains a firm cut-off for public domain works in the U.S.
Anything else would only generate inequalities that are hard to defend. Why should a foreign author get a longer copyright term than a corresponding U.S. author? A U.S. author who published a work in 1919 (and who renewed the copyright) got only at most 75 years... Also, foreign authors from countries who had copyright relations with the U.S. before 1998 would be put at a disadvantage. For instance, a German author who published in 1919 would also only have gotten the 75 years. Why should a Vietnamese author get a longer term?
Posted by: Lupo | April 30, 2009 at 12:06 AM