TERM EXTENSION

JANUARY 1999

On October 27, 1998, PL 105-298 expanded by an additional 20 years the term of copyright protection in the United States. Although this was not unexpected, it was a sad day for scholars and researchers everywhere. The longer term of life plus 70 will delay when works pass into the public domain.

The U.S. Constitution grants Congress the power to enact legislation “to promote the progress and the useful arts” by giving authors and their writings legal protection for “limited times.” Throughout the years, the Copyright Act has been amended to change the number of years for which protection is available. One thing has remained static, however, and that is the concept that copyright protection is not perpetual, for that would contravene the Constitutional clause.

The 1790 Copyright Act provided for a term of 14 years, which could be renewed for an additional 14 years. So the longest period for which protection was available was 28 years. The 1909 Act doubled the term of protection to 28 years, renewable for an additional 28 years, providing a maximum term of protection of 56 years. Authors and publishers began to lobby to extend that term to correspond with the term offered to their European counterparts, i.e., life of the author plus 50 years. The estimate was made in 1976 that the average author lived for 25 years after producing a work, so the maximum term generally would be about 75 years. Thus, the 1976 Copyright Act extended the copyright term to life of the author plus 50 years, an increase of approximately 20 years. The stated purpose for the change was to conform to the law of Western Europe.

Now two decades after the 1976 Act became effective, content providers again lobbied to extend copyright protection by an additional 20 years. Part of the reasoning was that the European Union had already increased the term for EU authors to life of the author plus 70 years. Despite efforts to the contrary, it has been clear for the past few years that Congress was in agreement, primarily in the guise with harmonizing the laws of the U.S. with those of Europe. (This is interesting since the music licensing provisions that were coupled with term extension clearly do not harmonize with European law, and, in fact, there is likely to be a complaint filed by the European Union to the World Trade Organization because the music provisions fly in the face of our treaty obligations).

The new law provides that works with corporate authorship, or which are anonymous or pseudonymous, are protected for 95 years after date of first publication or 120 years after creation, whichever comes first. Based on the term of protection, only works produced before 1923 are in the public domain.

The opposite of copyright protection is the public domain. These works belong to everyone, and no one may claim exclusive rights in them. The types of works in the public domain are predominantly of three types: (1) works, on which the copyright has expired, (2) works on which there was no claim of copyright and (3) works published by the federal government. The public domain is very important to scholars, for there is no restriction on the uses that may be made of these works. They may be reproduced, adapted, performed, displayed, etc., without permission from anyone. The public domain furthers scholarship and research because of this lack of restriction.

Under the prior law, at the end of 1998, all of the works published in 1923 would have passed into the public domain; at the end of 1999, works published in 1924, etc. This expanded term of copyright will delay anything passing into the public domain for 20 more years or until 2019.

So, what is the reason that the law has been extended to the point that virtually nothing produced during your lifetime will pass into the public domain? Not traditional publishers or authors, but primarily the large movie studios. Disney had a serious concern, specifically that Mickey Mouse and the other Disney characters would have gone into the public domain within the next few years. One could argue that we have hurt serious scholarship for that silly mouse! And besides that, Disney has trademark rights in their characters too, and trademarks are renewable every 10 years as long as the mark is in continuous use in interstate commerce.

There is some difference in how unpublished works fared under the new amendment. The 1976 Act sought to harmonize its copyright term with that of the 1909 Act. For unpublished works, specifically those that existed as of January 1, 1978 but which had never been published, the Act established a time when they would enter the public domain. This category is comprised of unpublished letters, diaries, photographs, manuscripts, and the like: the very works that scholars most need. Works in this category which remain unpublished until the end of 2002 pass into the public domain, January 1, 2003, or life of author plus 70 years, whichever is longer. For works that existed as of January 1, 1978 but which are published between then and the end of 2002, they now will not enter the public domain life of the author plus 70 years or the end of 2047 years, which ever is longer.

Library associations had proposed that, if term extension passed, the provisions relating to unpublished works produced before the effective date of the 1976 Act should not be changed. This was not to be, however. It is difficult to determine who benefits from this provision or who was lobbying for the extension for unpublished letters, diaries, journals, etc. Scholars, biographers, and other researchers will be hurt by this extension, for public domain access to these materials will not be for another 49 years.

During the Congressional debates on term extension, Sonny Bono’s widow stated that she believed copyright should be perpetual. While we are likely to see further attempts to increase the term of copyright, probably in another couple of decades, perpetual copyright is not likely. That would require a Constitutional amendment.

To assist librarians and other in determining when a copyrighted work enters the public domain, several years ago, I created a chart that is widely used. It now has been updated to reflect this new amendment.

http://www.unc.edu/~unclng/public-d.htm