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Intellectual Property

Intellectual Property Guide

When U.S. Works Pass Into the Public Domain

 

The following guide was created by Lolly Gasaway of the University of North Carolina, and is used by permission.

 

Definition: A public domain work is a creative work that is not protected by copyright and which may be freely used by everyone. The reasons that the work is not protected include:

 

  1. The term of copyright for the work has expired;
  2. The author failed to satisfy statutory formalities to perfect the copyright; or
  3. The work is a work of the U.S. Government.
Date of Work Protected From Term
Created 1-1-78 or after When work is fixed in tangible medium of expression Life + 70 years1(or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation2
Published on or before 1-1-1923 In public domain None
Published between 1-1-1923 and 12-31-1963 When published with notice3 28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain
Published between 1-1-1964 and 12-31-1977 When published with notice 28 years for first term; now automatic extension of 67 years for second term
Created before 1-1-78 but not published 1-1-1978, the effective date of the 1976 Act, which eliminated common law copyright Life + 70 years or 12-31-2002, whichever is greater
Created before 1-1-1978 but published between then and 12-31-2002 1-1-1978, the effective date of the 1976 Act, which eliminated common law copyright Life + 70 years or 12-31-2047, whichever is greater

 

1 Term of joint works is measured by life of the longest-lived author.
2 Works for hire, anonymous and pseudonymous works also have this term. 17 U.S.C. § 302(c).
3 Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies. 17 U.S.C. § 405.

(Notes courtesy of Professor Tom Field, Franklin Pierce Law Center, and Lolly Gasaway)
Last updated 11-04-03
* Chart may be freely duplicated or linked to for nonprofit purposes. No permission needed. Please include web address on all reproductions of chart so recipients know where to find any updates. http://www.unc.edu/~unclng/public-d.htm

Copyright Restoration for Foreign Items Previously in the Public Domain

 

The status of an item that was published in another country is often difficult to determine. But it is even more nebulous when dealing with items that lapsed into the Public Domain the U.S., but were still protected in their country of origin. Here is what you need to know about copyright restoration.

Copyright restoration occurred under the General Agreement on Tariffs and Trade (GATT), in the Uruguay Round Agreements Act, 17 U.S. Code Appendix L, 108 Stat. 4809 (December 8, 1994). The statute became effective on January 1, 1996. It extended copyright to foreign items that had formerly been in the public domain in the US because formalities were not taken. The statute requires:

  • The author was a citizen of a country which whom the U.S. has a copyright treaty;
  • The work was not published in the U.S.within 30 days of its original foreign publication;
  • The work is in the public domain in the U.S.because formalities were not taken; and
  • The work was still under copyright protection in the country of origin on January 1, 1996.

It is also important to determine if there were copyright treaties in effect between the United States and the country of origin:

  • The U.S. began entering into bilateral copyright treaties with various countries starting in 1891 that offer the same level of protection as the work would receive at home.
  • In 1910, the U.S. joined the Buenos Aires Convention.
  • The U.S. joined the Universal Copyright Convention in 1952.
  • In 1987, the U.S. joined the Berne Convention for the Protection of Literary and Artistic Works in 1987.
  • In 1994, the U.S. joined the General Agreement on Tariffs and Trade (GATT).

Here is an example to help illustrate how copyright restoration works. In 1937, Olaf Stapledon published his science-fiction novel Star Maker. This book had a substantial effect on the authors of the "golden age" of science fiction and later, including Arthur C. Clark, Robert Heinlein, Brian Aldiss, and Stanislow Lem. H.G. Wells was also a big fan, as were Virginia Wolfe, Doris Lessing, and Jorge Luis Borges (who wrote a prologue for the 1965 edition). The book was first published in the United Kingdom. So what is its copyright status in the U.S.? Before copyright restoration, the following factors come into play:

  • The work was published in 1937 in the United Kingdom.
  • There work never received either an original nor a renewal registration in the U.S.
  • The work was covered by a 1920 bilateral treaty between the U.S. and the U.K and its dominions (including Canada). The treaty provides that U.K. works receive copyright protection in the U.S. for the same period that they would have enjoyed at home. But U.S. renewal requirements and formalities still applied.
  • The U.K. uses the life of the author plus 50 years. Since Stapledon died in 1950, UK copyright expired in 2000.
  • Because the work was not renewed in the US, it fell into the public domain after 28 years in 1965.

Under copyright renewal, however, the work came back under copyright protection:

  • Olaf Stapledon was British and the book was published in Britain.
  • It was not published in the U.S. within 30 days (in fact, not until 1961).
  • The formality of copyright renewal was not taken.
  • The work was still under copyright in Britain on January 1, 1996.

Thus the copyright renewal act would have extended protection to Star Maker until 2000. However, that is not the end of the story.

The other law that affects this work is the Sonny Bono Copyright Restoration Act of 1998, 112 Stat. 2827 (1998). This statute added an additional 20 years onto all copyright periods. Thus, instead of Star Maker entering the public domain in 2000, it will not enter the public domain until 2020. (And had it been published in the U.S., it would have been under copyright until 2032.)

For a complete run-down, see Public Domain Sherpa. (2016). Copyright restoration and foreign works: be careful. http://www.publicdomainsherpa.com/copyright-restoration.html.