Copyright and Preservation

A. Is the Work Protected?


The threshold question is whether or not a work is protected. Many older works that need preservation treatment are now unprotected in the public domain. They might be in the public domain for a variety of reasons: because copyright protection was never properly secured, because the term of copyright has passed or the copyright was not renewed in a timely manner, or because they were ineligible for protection (government documents, blank forms, facts and ideas, etc.). Any work that came into the public domain before the new Act took effect in 1978 may be copied freely because nothing in the new Act restores the copyright of such a work.28

1. Published Works

Under the old Act, copyright protection came into being when a work was "published with notice". "Publication" was the dividing line since there was no statutory protection without publication. But if a work was published without the requisite formalities, it went into the public domain immediately. As a result of this dual requirement, there was a great deal of litigation over the concept of publication and the requirement of notice.

Interestingly, despite the importance of publication, the 1909 Act did not explicitly define the term, and its meaning in the copyright context may be different than what it means to most librarians.29 Section 26 of the Act hints at a possible definition, at least for those works that are reproduced for sale or distribution. There, it states that the date of publication is:

the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority....30

Librarians may tend to think of publication as occurring when a work is printed by a publisher. Under the 1909 Act, however, the printing date was largely irrelevant31. The key concept was the release of the work to the public, and the key words are "placed on sale" or "publicly distributed".

The phrase "publicly distributed" permits protection even for items that are handed out free, provided they meet the requisite formalities. But, just because a work is distributed does not necessarily mean it has been published. For example, distribution to a limited group of people for limited purposes and without a right of further distribution32 does not constitute publication.33 Similarly, the oral presentation of a play or a speech does not constitute "publication", even though it may have been heard by thousands of people.34 For statutory protection on such a work to be secured under the old Act, it still had to be published (in the traditional sense) with notice. Thus, for example, if someone wished to film Martin Luther King's "I Have a Dream" speech from the press copy, they could not conclude that the speech must be in the public domain simply based on the fact that millions of people have heard it and the document carried no notice.35 Statutory protection might well have been secured later or it could have been protected under common law copyright as an unpublished work.36

In order to secure copyright protection under the Act, the owner had to affix the prescribed notice37 in a prescribed location38 on each authorized copy39 of the work published in the United States. The omission40 of the notice was generally fatal to a claim of copyright.41 Although in many cases defective notices42 also invalidated a claim of copyright, in some cases courts were inclined to construe the form requirements liberally, rather than invalidating a claim based on a minor technicality. As a result, it seems reasonable and prudent, if a notice of copyright is found on a published work, to presume its validity even if the notice is not on the back of the title page or is in non-standard form.

In summary, for works published in the United States between 1909 and 1978, the Copyright Act required publication with notice. If those requirements are met, it would be prudent to assume the presence of a valid claim of copyright, at least as of the indicated date.

Under the Copyright Act of 1976, publication is no longer required for statutory protection,43 and the notice requirements were liberalized by the addition of a statutory provision designed to permit a defect in the notice to be remedied within a limited period of time.

Instead of requiring publication with notice for protection, section 302(a) now states that:

Copyright in a work created on or after January 1, 1978 subsists from its creation...

This provision brings into the statutory scheme many unpublished works that previously fell outside the protection of the Act.44 Nonetheless, because there are several ramifications that flow from publication, Section 101 of the new Act defines the term, incorporating much of what was discussed above. There, the Act provides that publication is:

the distribution of copies...of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending....A public performance or display of a work does not of itself constitute a publication.

The new Act, from January 1, 1978 to March 1, 1989, required notice of copyright on all publicly distributed copies of a published work.45 The position of the notice was, however, more flexible than before; the new Act only required that the notice "shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright."46 In addition, under the new Act, the total omission of a notice did not automatically result in the forfeiture of copyright. Section 405(a) provided that the copyright was not invalidated if (1) the notice was omitted from only a relatively small number of copies, or (2) registration was made within five years and a reasonable effort was made to add the notice to all copies distributed after the omission had been discovered, or (3) the omission was in violation of an express written agreement. The language of these curative provisions is far from precise,47 but cases have filled in some answers. The curative provisions suggest that under the 1976 Act, one cannot simply rely on the absence of a notice to determine that a work was in the public domain. If, however, one did rely on the absence of a notice for works published during that period, and can prove they were misled48 because of its absence, Section 405(b) eliminates their liability.

The notice provisions changed again on March 1, 1989, the date the United States joined the Berne Convention. The Berne Convention is an international copyright convention that attempts to harmonize the copyright laws of different countries. In addition to affecting the way in which the United States treats materials published in other jurisdictions, implementation of the Convention required some changes to our own Act,49 including the notice requirement. In order to bring U.S. law into conformity with that of other Berne Convention countries which have abandoned the notice requirement, the U.S. law now states that for works published on or after March 1, 1989, a copyright notice may be placed on all publicly distributed copies.50 For works published after that date, a notice of copyright is not required, but the Copyright Office is continuing to encourage the use of the notice on a voluntary basis to allow a copyright owner to defeat a claim of innocent infringement. As a result, for works published after March 1, 1989, with or without a notice of copyright, one should presume they are protected.

2. Works Published Abroad

Copyright legislation here and abroad is national in scope. Each nation has its own copyright laws applicable to the uses of a work within its borders, and whether or not a work is protected in another country is dictated by the laws of that country. Thus a work may be in the public domain in the United States, but be fully protected under the laws of other countries. Conversely, whether or not a work is protected in the United States is governed by U.S. law. It is beyond the scope of this paper to review the copyright legislation of every jurisdiction, worldwide, but libraries participating in the brittle books program should be aware of a possible problem if they intend to make documents available overseas. They may well preserve and disseminate documents perfectly legally in the United States that would cause problems in other jurisdictions.

Generally speaking, copyright protection in the United States for published works requires first publication in the United States or in a country with whom we have a copyright treaty.51 Protection is also granted if the author is domiciled in one of those countries. In addition, the President may issue a proclamation granting protection for works and authors from particular countries if he finds that those countries accord nondiscriminatory treatment to U.S. works.52 Finally, works published by the United Nations or by the Organization of American States are granted protection.

Under the Universal Copyright Convention, the normal U.S. formalities53 were not required for non-domestic authors, provided published works contained the U.C.C. notice, consisting of (1) the "c" in a circle, (2) the name of the proprietor, and (3) the year of first publication, placed on the work in such a way as to give "reasonable notice" of the claim. Thus, although the dates when different countries signed the conventions are certainly relevant, it would be prudent to consider any work published with the requisite notice in any of these countries, or by a domiciliary of one these countries, protected in a manner equivalent to U.S. works.

The Berne Convention substantially expands the number of countries54 having reciprocal relations with the United States. However, the Convention, which became effective on March 1, 1989, is entirely prospective. As a result, adherence to Berne does not add any protection to works already in the public domain in the United States. Works published before March 1989 in Berne countries that do not have another copyright agreement with the United States are, therefore, unprotected in the U.S. even though they may be protected elsewhere. As noted above, the Berne Convention also does away with the notice requirement. As a result, works published in any Berne country after March 1, 1989, with or without a notice of copyright, should be presumed to be protected for the statutory duration. (See infra.)

3. Unpublished Works

Up to this point, the discussion has been limited to published works which, historically, have been treated very differently than unpublished works. Under the old Act, works published with notice were protected, and works published without notice were not. Those works that were not even published fell outside the ambit of the statute altogether. They were governed by state statute or the common law, in a way that is usually referred to as "common law copyright". In general, protection under state law came into being from "the moment of creation" and terminated upon publication. Except for the examples of unfixed creation noted in infra, the types of works that were the subject of state copyright protection were essentially the same in unpublished form as those covered by the statute. State copyright protected manuscripts and unpublished speeches. Infringing actions included acts of reproduction, performance, and distribution. Thus, although unpublished works were not covered by the old Act, common law copyright provided them with essentially similar protection.55

For the brittle books program, the key question is when does common law copyright terminate? The basic rule was that common law copyright continued unless and until the work was published. In that sense, it was sometimes referred to as a right of first publication.56 Common law copyright was also terminated if the work was registered with the Copyright Office as an unpublished work.57 In general, then, under the old Act, common law copyright existed for unpublished or unregistered works in perpetuity.58

All this changed under the Copyright Act of 1976, and many of the problems created by the dual system (state and Federal) of copyright protection have been substantially eliminated. The new Act explicitly covers all works--published or unpublished--and preempts any state law purporting to create equivalent rights.59

In addition, under the new Act, publication is no longer the critical dividing line that it once was, and unpublished works are brought fully into the statutory framework.60 As a practical matter, since the statute requires a work to be "fixed in a tangible medium of expression", protection now dates from the time of fixation, whether on paper, film, or disk,61 rather than from the time of publication. Generally speaking, then, under the new Act, all newly created but as yet unpublished works should be regarded as protected in the same manner as any other work.

Those works which were created before the new Act went into force (January 1, 1978) but had not been published and had not gone into the public domain are also brought under the statute. They are protected for the ordinary term (see infra), but because that duration might be short, they are provided a minimum period of protection to December 31, 2002. If they should be published prior to that date, the minimum period of protection is extended to December 31, 2027.62

In summary, under the old Act unpublished works were protected in perpetuity under state "common law" copyright. Under the new Act, they are protected along with other works for the ordinary term of copyright. But, because of the minimum period of protection provided for such works, any work unpublished, unregistered, and not in the public domain as of January 1, 1978 should be presumed to be protected at least through the year 2002.

4. Government Publications

The Copyright Act provides that:

Copyright protection under this title is not available for any work of the United States Government...63

Although this provision seems simple and straightforward, there is one limitation. A work that is otherwise protected and is subsequently published in a government publication is not thereby placed into the public domain. In the original enactment of this provision in the 1909 Act, section 8 stated:

The publication or republication by the Government...of any material in which copyright is subsisting shall not be taken to cause any abridgement or annulment of the copyright or to authorize any use or appropriation of such copyrighted material without the consent of the copyright proprietor.

Although this language is omitted from the current Act, the definition of "work of the United States Government" in the 1976 Act states that it is "a work prepared by an officer or employee of the United States Government as part of that person's official duties."64 Presumably, then, if some other work is reprinted in a government publication, it does not itself become a government publication and lose protection. That this is the intended result under the current Act is made explicit in the legislative reports.65 If government publications are reproduced as part of the brittle books program, participating libraries should be aware that although such documents are generally in the public domain, some materials within them may not be.

With regard to state or local publications there is no exclusion from protection. However, several court opinions have suggested that federal copyright protection should not be available at least for the official text66 of the state statutes or court decisions.67 Although it has not been so held, the principles enunciated in those cases would also seem to preclude protection for state administrative regulations, local ordinances, and the decisions of any judicial or administrative tribunal. Nonetheless, all other state publications presumably can be copyrighted. In any event, it must be said that this area is unsettled. If a state claims copyright protection in a work, the prudent person would accept that claim, unless he or she specifically wanted to challenge it.

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