October 2000
The copyright status of unpublished
works has long plagued librarians. The
status of such works has changed over the years, and today the Internet raises
new questions about whether and at what stage works are published. Further, the fair use of unpublished works
is somewhat more restricted because of the right of first publication.
The concept of publication was
relatively clear and easy to understand in the analog world. Publication is defined in the Copyright Act
as “the distribution of copies or phonorecords of a work to the public by sale
or other transfer of ownership, or by rental, lease or lending.” In other words, a copy of the work changed
hands. In the digital environment, a
copy does not actually change hands but it may still be distributed through
transmission. The statutory definition
continues, “The offering to distribute copies or phonorecords to a group of
persons for purposes of further distribution, public performance, or display,
constitutes publication.” Does posting a work on a website constitute
publication for copyright purposes?
Most experts would argue that it does.
In the United States, copyright
attaches to any original work of authorship that is fixed in tangible medium of
expression. Whether a work is published
or not is immaterial for copyright protection today, but it does affect the
term of copyright if the work is one of corporate authorship or is anonymous or
pseudonymous. For those works, the term
of copyright is 95 years after date of first publication or 120 years after
creation, whichever comes first as opposed to life of the author plus 70 years
for works of personal authorship.
Unpublished works have not always been protected by federal copyright,
however.
Prior to the 1976 Copyright Act,
unpublished works were not eligible for federal copyright; instead, they were
protected under “common law copyright.”
Common law copyright gave the author the right of first publication of
the work and some protection against tortious misappropriation of the work, but
little else. Further, once the work was
published, common law rights were divested and federal copyright protection was
available only if the author met the statutory formalities such as including
the notice of copyright on copies of the work, registering the work, etc. Some states offered limited protection for
unpublished works, but protection was spotty at best.
The Copyright Revision Act of 1976 eliminated
publication as the demarcation between federal and state law. Additionally, under Section 301 of the Act,
state laws are preempted by the Act to the extent that they are equivalent to
any of the exclusive rights within the general scope of copyright. Thus, there is little left for common law
protection. The problem of unpublished works created before the
effective date of the Act, January 1, 1978, continues, however. Archival collections all over the country
are filled with unpublished works that continue to have some protection under
common law copyright.
The 1976 Act established a date at
which unpublished works would pass into the public domain which will thus end
common law protection entirely. Unpublished works that existed as of January 1,
1978 and which remain unpublished through the end of the year 2002, will pass
into the public domain life of the author plus 70 years or at the end of 2002,
whichever is greater. Thus, a huge
number of works will enter the public domain on January 1, 2003. Archival collections often hold the only
copy of these unpublished works but most often do not hold the copyright in the
work. Permission from the archives will
not be needed to reproduce, distribute, adapt, perform or display these public
domain work after one gets access to the work.
On the other hand, an archives may decide to
restrict access to the copy it holds and thus prevent anyone from using the
work in any way or seriously restrict its use.
Such archival collections often sell the right to use manuscripts and
images in their collections; after 2002, for those works that pass into the
public domain, these collections can continue sell access but not the right to
use the work. In other words, if in
2003 someone purchases a copy of an unpublished photograph from an archives and
includes it on the web or in a printed publication, anyone may then reproduce
that photograph from the web or publication without going back to seek
permission from the archives. The
public domain status of the work so dictates.
For unpublished works that existed as of January 1,
1978 but which are published between then and the end of 2002, they will pass
into the public domain life of the author plus 70 or the end of 2047, whichever
is greater. Thus, the public must deal
with a different copyright status for totally unpublished works for a couple of
more years, and even longer for existing works that are published between
1978-2002.
A series of cases and ultimately a statutory
amendment answered the question about fair use of unpublished works. The most important case arose when the
reclusive author J.D. Salinger sued to stop publication of letters he had
written.[1] Recipients of the letters had donated them to university
libraries where they were located by someone writing a biography of Salinger
who wanted to use them as a first-hand account of Salinger’s life. Under the law, the author of the letter
retains the copyright unless he has transferred it to someone else. Here, the court held that Salinger owned the
copyright and could refuse to let the biographer publish the letters. This was based on the common law concept of
the right of first publication despite the biographer’s claims of fair
use. In other words, Salinger himself
might decide to publish the letters and the law will ensure that right.
A series of other cases followed that danced around
the right of first publication but also discussed the problems of the First
Amendment and censorship. An author of
a letter could claim the right of first publication in order to censor the
publication while never intending to publish the material herself at all. Still, the unpublished status weighs heavily
against a finding of fair use.
The fair use section of Copyright Act was amended in
1992 with the addition of a very important sentence. “The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon consideration of…” the four
fair use factors. Thus, a court may recognize that the right of first
publication is more important than permitting a biographer or critic to include
unpublished works by a writer in the biography or work of criticism that he is
publishing. But the unpublished nature
of the work is not in and of itself a bar to a finding of fair use.