What Public Domain? Why A Letter Written In 1755 Is Still Covered By US Copyright Law
from the stamping-out-the-public-domain dept
If you ever done any research about the public domain, you've probably come across this awesome chart from my alma mater, Cornell, that tries to explain how you can figure out if something is or is not in the public domain in the US. I've relied on the chart many times (and linked to it a bunch as well). Now, Peter Hirtle, one of the people behind that chart, has an equally fantastic and frustrating article detailing how difficult it is to determine if something is actually in the public domain (and the fact that so little enters the public domain in the US any more). Hirtle kicks it off by recognizing the importance of the public domain, including the fact (often ignored, it seems) that all copyrighted works must enter the public domain at some point. He then goes into a series of seven reasons why it's so incredibly, ridiculously difficult to ever figure out if something is in the public domain.A few years back, we wrote about a fantastic research report that suggested for all of the claims that the song "Happy Birthday" remains covered by copyright, there was a lot of evidence that it was still in the public domain. After all, the music is from the 1800s and the lyrics were published in books starting in 1912. And, of course, as the handy dandy chart notes, works published prior to 1923 aren't supposed to be subject to copyright. But.. it's not always that simple:
Robert Brauneis notes that the lyrics to “Happy Birthday” were published in 1912 in The Beginners’ Book of Songs and again in 1915 in The Golden Book of Favorite Songs. (The music is much older.) Yet according to the current owners of the presumed copyright in “Happy Birthday,” these early publications were unauthorized. They argue that the first authorized publication of the lyrics to “Happy Birthday” occurred in 1935 and copyright runs from that date. Digitizing either the 1912 or 1915 volumes or singing the lyrics to “Happy Birthday” as found in the books would therefore infringe on the copyright first secured in 1935.Yes, you read that right. If you digitized books from 1912, you could infringe on a copyright from 1935. That is not a functional system.
But that's not the only crazy case. Hirtle highlights another example of what he believes may be the oldest work still covered by US copyright... and it's from 1755:
Probably the oldest work still protected by copyright in the U.S. is a letter from John Adams to Nathan Webb written on Sept. 1, 1755. Copyright in the Adams material was transferred to the Massachusetts Historical Society (MHS) in 1956. In that same year the MHS published a microfilm edition of the correspondence and registered the copyright with the Copyright Office. Copyright was renewed in 1984, which means that copyright in the Adams letter will expire on Jan. 1, 2052, almost 300 years after it was written.There are a number of other crazy examples as well. Take, for example, arguments over whether or not a work is "published" or "unpublished." This can matter, especially for older works, since there were different copyright rules depending on the publishing status of the work. But, the definition of "publication" isn't always clear, especially for pre-1978 works (see the example above). And that can create bizarre examples like the one below from an actual court case:
An allegedly infringed work reportedly has a title page stating that it was published. Furthermore, the defendants also claim that the work was distributed to more than 55,000 people. Nevertheless, the work is registered as an unpublished work with the Copyright Office. This is because the work was never offered to the public; instead, it was only to senior officials and leaders of the Mormon Church.Similarly, he notes that merely broadcasting a TV show wasn't considered "publishing." So TV shows like the first episode of Star Trek don't have their copyright clock start until nearly a dozen years after it was first broadcast, because that's the first time it was "offered for sale" rather than just broadcast.
Reading through all of the examples, it's a great lesson in how screwed up copyright law is today, especially with regards to the public domain -- a sadly neglected part of American culture.
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Filed Under: copyright, public domain
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Playing with words much eh, Pirate Mike? It's obvious they used their time machines to secure their copyrights. How do you think "Back to the Future" series was made? Also, it's the Law! Law!
/aj
In a more serious comment can this system be fixed? In my opinion we will need to scrap it and start over...
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Here's how I would do it:
�107 . Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work is not an infringement of copyright.
All uses of a copyrighted work are fair.
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Plus, anything whose author is dead cannot be subject to copyright. So you can't claim copyright on letters from 1755 YOU DID NOT WRITE.
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I think you might want to get your definition of "tangible" in order...
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I'd like to make exceptions for television series like Star Trek: The Next Generation.
Gene Roddenberry died before it was complete, but left enough notes for them to finish it.
I think, in that case, the series should be under his copyright protection for a few more years after it ends at least.
That would be the "Roddenberry clause" that I would have for Copyright if I wrote it up.
Other than that, screw the hippies.
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That would remove the need for corporations to try to extend copyright durations. They'd actually fight to have them reduced so that they could publish works without having to worry about royalties. Then again, all publishing companies would be publishing 10 - 15 year old material or else paying authors for the non-exclusive right to publish their work, which would make them compete with other publishers by having to offer the best terms.
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um, sounds great in theory, wilson...
only thing is -and this is just a minor detail- you would essentially have to dismantle the present kapitalist imperialist system to diminish the power of those infinitely rich, totally amoral, and completely fictitious 'humans' called korporations...
i'd sure like to try, but ain't gonna happen until Empire collapses...
art guerrilla
aka ann archy
eof
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But I must disagree with the 5-year extension, because that creates two different classes of work from the same time period (as it has done for those from between 1923 and 1949), and to make that workable essentially mandates use of a copyright registry; whereas without the extension law, all one must do is elementary arithmetic.
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- The "creation rights", is a non-transferable right to choose who gets publishing rights and enforcement rights.
- The "right to publish", which is transferable and only deals with the economic side of publishing. The owner(s) of this right are completely in the hands of the owner of "creation rights" and the right to appoint "right to publish" is nontransferable.
- The "right to publisher enforcement", which is a right usually granted to a publisher and later it can be transferred to an overall guardian and entails right to write copyright notices online, helping police in cases of physical copyright breaches and so on (Separate from right to publish because of ensurance and other risk-pooling business models).
- The "Secondary intellectual rights" are the abilities to trademark names or patent content. It is only transferred from the creator of the content in explicitly stated cases and only is a short period after first publication.
- "Third party creation rights" is the rights of those participating in the creation, but not publisher and creator. It includes but are not limited to economic interests, information about the status of the other rights or any changes to those and power in appointing the ownership structure of "creation rights" before the "right to publish" and "right to enforcement" if it is a question. (to create a reasonable way to appoint orphaned works)
Exceptions are appointed to specific parts of the total rights according to reasonable criteria.
By splitting copyright up into smaller pieces of the total copyright you can start to make a much deeper system. The existing system can be easily fitted into this system.
It will make it a lot easier for people to advocate reasonable limitations to the system without getting hit by nonsense general arguments and too general numbers since the relative value of each part is so much more specific and demand a far more targeted approach to measure!
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Enforcement should not be transferable either. As the publisher under this system would only be providing a service to the creator(s), they have no "rights" to enforce. Only the creator(s) should have the "right" to enforce their copyright.
The Trademark system and the patent system have nothing to do with copyrights. Therefore no need for such clauses in Copyright law.
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The categories are mere suggestions and does not necessarily constitute the package. Trademark and Patent systems are used by content creaters to avoid others taking their names or creations. It is also to have something to show for their research in trying to come up with a name for places and avoid lawsuits for "unlicensed product placement" in especially audiovisual content. I realize that your suggestion would make it far less of an issue.
What I am getting at is the need for a more diverse discussion of copyright as to avoid the publishing industry just saying "It is us or no copyright, take it or leave it sister politician!". By stratifying the copyright you force them to fight on more fronts to keep their currently very excessive rights. I think it is a necessity for us to be able to specifically define the problems and eventually force a more reasonable debate about it.
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. Rights transfer from the creator to a corporation can only be a time-limited lease of a maximum of 3-5 years, not permanently transferred. Corporations would need to (im)prove their added value as a continuous enabler and justify their share if they want renewal.
. Works out of print & not for sale for more than 1 year automatically go back to the actual creator from copyright-holding corporations
Shifting control back to the actual creators would do a lot to put a halt to copyright-holding corporate entities current quest of securing themselves perpetual property on others work they may or may not have helped see the day of light initially.
These corporations would finally be put to the service of the creators in the process, which admittedly would be a huge cultural shift to them so much they consider owning artists works...
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The avreage joe (not our not so average joe)
I dont care. I dont care you didnt like my use of Cars by Gary Neuman, or you blocked my audio for having bells toll that sound like AC/DC's Hells Bells.
I DOOONT GIVE A FUUUUUUUK!!!!
Ah that felt good.
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Re: The avreage joe (not our not so average joe)
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First, where it holds true (i.e., people find it convoluted so they ignore it). How many people do you see charging sales tax when they sell something on craigslist? I know roughly what sales tax is in my area and for what items, but for any given item and exactly what it is on my street I couldn't tell you. If I sell something on craigslist, sales tax isn't going to be collected. The person I sell it to isn't going to pay it either. It's convoluted, so it gets ignored.
Where taxes are different in this case though are that finding an accountant to do your taxes is easy, and relatively cheap. Often, they take their money from the returns you get, and most people treat their returns more like bonuses rather than getting back the money they overspent.
And even if you did your taxes yourself, making sure you don't underpay is relatively easy for the vast majority of people. Making sure you don't overpay is a lot more complicated. A lot of people overpay, because they ignore the complicated stuff.
On the other hand, finding a copyright lawyer to determine if a work is in the public domain is not easy or cheap. And just because the lawyer might say nay, doesn't mean the person/group/entity that thinks they hold a valid copyright will let you get away without a lawsuit. Several people have determined that Steamboat Willy is in the public domain. Yet you don't see that on Netflix because they know Disney would sue them. Even if Netflix were to win, that lawsuit would cost a lot of money. The sad reality is, too often the only sure way to know something is in the public domain is a lawsuit.
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The proceeds of copyright - on the other hand - go straight into private pockets.
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Rather depends on whose prviate pocket you are talking about - remember we are talking about monopolistic rightsholding organisations here.
Efficiency derives from smaller size and lack of legacy commitments not from public vs private.
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Re: The avreage joe (not our not so average joe)
I think we need some sort of "Yellow pages" for copyrighted works to easily tell if a work is copyrighted, which type of copyright and who holds it for contact. Sure you'd need a Google-like infrastructure to run such system based on current laws but that's another issue.
Also, VPN FTW!
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We had just such a system prior to 1976 (in the US).
Wait, I just thought of something.
There was almost no file sharing happening in 1976! No hordes of internet pirates wantonly stealing the precious intellectual property! There was no Pirate Mike back then, either. No Pirate Party! No Pirate Bay! Quick, call up our lobbyists, we can solve piracy by changing the law back to what we had before 1976!
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Huh?
Wasn't it sold to the network back in the sixties?
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Pre-1978 CR was a function of its time
But the 1976 Act did away with most of the formalities of registration, and CR now attaches at the instant of creation, that is, for works entitled to CR in the first place.
It's not the system that's broken. It's ALL of the different systems we've tried over the centuries as technology has challenged the old ones that are broken--including the interaction of all the old ones with each other.
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But, that's WORK!
You'd have to pay someone to do the paperwork and file the registrations!
That costs MONEY!
You think corporations want to waste MONEY on something like that?
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There is nothing in that clause that hints that heirs, corporations, or anyone else ought to have a practically unlimited right to profit from, or simply squelch, the writings or other creative work, of an author.
In a perfect world, copyright would last for the lifetime of the author, or at least 50 years from creation, whichever is longer. Why should the grandchildren of an author keep getting royalties? And more pertinent, why should works that are out of print be inaccessible to those who would want to re-print or digitize them? There *is* no reasonable asnwer to that question!
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Serious Question
Does this mean that there is no effective copyright on a TV show UNLESS it's offered for sale to the public? IE: If a show airs on TV tonight but is not offered for sale, can it be copied because the copyright clock hasn't started yet?
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It's Outright Theft!
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Still, I look forward to the inevitable showing of one or more of them, and the absolutely amazing distortions of logic, sanity, and reality as it is they will employ in their attempts to make this insanity seem 'right'.
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Think about it: a library pays once for a copy of a book/movie/CD, and then a whole bunch of people are able to check it out without each having to also pay. To a troll, the idea of sharing without money changing hands is an absolute abomination, so it's no wonder libraries catch so much flak from them.
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ITS ALL OURS DAMN IT!
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Copyrights are reasonable, if you understand what is protected.
Copyrights cover only works of authorship. Copying a work in existence does not create a copyright. The publication of the words to the "happy birthday" song in 1935 in a book did not create a copyright in those words, but rather only a copyright in the particular visual arrangement of the words on the page.
If Mr. Masnick realized this fact, he would not have such anxiety.
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If memory serves, the damages for a copyright violation are in the hundreds of dollars per violation. The attorneys fees are much more concerning.
If a restaurant chain makes decisions based on rumor, bad law and insubstantial threats, it's their loss...
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So reads 17 U.S.C. 102.
There are no "issues" where there is no copyright to begin with. Publication of something in the public domain is not distribution of something original, nor is it a work of authorship. I'll consider the law more authoritative than this article's representations of Mr. Hurtle, thank you.
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Although reading that act takes a bit of concentration, it seems clear that copyrights originate in an act of an author, who would be the original claimant of a copyright. I don't think the present law is in conflict.
For the birthday song, the true question seems to me to be: what did the 1935 publisher actually author?
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I know how to fix all this nonsense
All copyrights and patents have an assigned fixed value. Anyone can choose to pay off part of this fixed value. When that value has been reached the copyright/patent becomes public domain and the money collected goes to the rights holder.
If a rights holder wants to prevent it going to public domain they can wind back the payment on a 2 for 1 basis. Giving the payment contributor their money back and an equal amount to the government authority in charge of the scheme (to help pay for the administration cost).
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You realy have a blinkered view of the world.
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The original letter from 1755 isn't copyright, you know it. The edition produced on microfilm edition of it is.
You could in theory take the oldest writings of man, and in digitizing them and publishing them, get a copyright - on that publication.
It is unlikely that you would actually be able to enforce the copyright against people using the original or material sources in other manners, however.
Nothing like a little FUD, right Mike? Nothing like not telling all the truth, right?
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I've actually had Intellectual Property Law
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So using this logic, anything that's aired but hasn't been offered for sale anywhere yet, isn't covered by copyright, because it's not published yet?
I suddenly feel a lot less guilty over downloading tv shows.
And if someone were to put clips from newscasts on youtube, that someone wouldn't be breaking copyright law either, as those images haven't ever been offered up for sale, nor will they ever be offered for sale.
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I can't believe the ignorance here
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I can't believe the ignorance here
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"he's right, copyright is a highly complex matter and just a few ranting thoughts in this comment thread won't cut it"
then it went to
"most of us would gladly leave the topic to the expert law scholars if the laws promoted by the historical copyright holders didn't damage the public's best interests"
and ultimately
"it's to short to patronize: since your knowledge encompasses the totality of copyright law, let us hear your take on what a copyright reform would restore balance and kill the induced rampant censorship"
Surely making money off of people ignorance is not your sole purpose in life and you have a meaningful insight to offer here as to what copyright reform we as a society need.
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Fair enough. You shouldn't bother intervening here either if you have nothing to offer but pointing to everyone else's alleged ignorance and boasting an alleged superior understanding.
"and why the system we currently have does indeed work and ultimately benefits everyone."
Does work as in "as intended" ? as in "matching the technological and societal reality" ? as a system consistent within itself ? "Working" is a very relative notion based on the purpose it's supposed to serve.
The asserted expert in you should realize "ultimately benefits everyone" is a mere... assertion. It's what copyright was meant to exist for I would agree. There are many real life examples showing how dubious the statement currently has become. Plenty on just this site that are unrelated to legal expertise.
"You make the mistake of assuming there is a need for copyright reform."
Point taken. I was indeed not assuming you were a conservative. Would you also say it's a "mistake" to the copyright-holders lobbying for for more copyright and copyright enforcement implementation ?
There's no reason I would deny you to have an opinion. As long as you recognize it as such.
Lastly, I do hope your post isn't a concealed advertising for the book you suggest.
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Noone couldn't even get to the point of discounting your advice I'm afraid, as you only a book reference so far.
"You obviously can't propose any sound reforms if you don't understand what we currently have."
If you mean actually writing laws to best match the elected legislators intention, I agree expertise is required to frame it in the most unambiguous and precise manner possible.
I disagree that you need to be a legal expert to form a legitimate political opinion. People and their elected representatives are driving legal evolution not the legal experts.
Unfortunatly you still need clarify if your position on whether no changes required to current copyright law also includes expansion thought by copyright-holding corporations ?
To be honest I am a bit at a loss as to how with all your expertise and understanding of the world you'd consider legal status-quo to be appropriate. Laws come and go, laws become obsolete, lots of them, legal systems constantly evolve to match a changing reality. Such a massively socially impacting change as the internet would not prompt for a serious evaluation of prior law system.
Stating that the people -the laymen as you called them- are not legitimate to form their opinion and are lest apt at comprehending the world because they are not trained legal experts negates just doesn't stand, sorry to fundamentally disagree with you.
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Copyright Law 101:
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Read the Robert Brauneis article on Happy Birthday -- he's not a paralegal, he's Professor of Law at George Washington; Co-Director of the Intellectual Property Law Program; Co-Director of the Dean Dinwoodey Center for Intellectual Property Studies; and Member, Managing Board, Munich Intellectual Property Law Center.
Also, if you have a copy of Patry on Copyright at work, you might read up on how older Acts may apply to older works and on the meaning of "publication" under the 1909 Act.
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Published means paid?
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Some explanations
Many commentators asked about the copyright status of television shows. Most pre-1978 court cases said that the performance of a television show did not constitute publication. This is currently embedded in copyright law in 17 USC 101. Selling a program to a network would probably not constitute an offer to the public, and so no publication would occur. The program would, however, be protected by state common law copyrights until such time as the copyright owner authorized publication, at which point the Federal copyright clock would start running. In the case of Star Trek, the first episode was broadcast n 1966, but it was not published with notice until 1978. It was not necessary to register a copyright to receive copyright protection, but Desilu Studios did do so, noting a publication date of 1978. As a work created before 1978 and first published between 1978 and 2003, this episode of Star Trek is subject to the copyright term specified by 17 USC � 303: 95 years from first publication or 120 years from creation, whichever is shorter.
State common law copyrights, BTW, were perpetual, which is why the copyright owner of the Adams letter could authorize its publication in the 20th century and receive the full 95 year term on the letter.
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