Monday, June 18, 2012

Chapter 3 - Duration of Copyright (in the US)

This is not legal advice. Leave audio feedback at (512) 686-6329.

A lot has been said about duration of copyright; most of it about how it inhibits free cultural expression (except from corporate propaganda machines like Disney). People get that copyright is used like a cultural water cannon, but most do not know the law. Today we hope to help with that.

First off, I want to apologize to people waiting for the edited version of the interview with Glyn Moody. I have had a lot of technical issues not worth going into here. I plan have it up tomorrow!

Chapter 3 of the US Copyright Act has five sections:

301: Preemption with Respect to Other Laws
302: Duration of Copyright: Works Created on or After January 1, 1978
303: Duration of Copyright: Works Created but Not Published or Copyrighted Before January 1, 1978
304: Duration of Copyright: Subsisting Copyrights
305: Duration of Copyright: Terminal Date

Below are some of the highlight:

301: Preemption with Respect to Other Laws

I already wrote a bit about the state laws that one might think would be preempted by the Copyright Act.

Sound recordings get special treatment all over the Copyright Act, including 301:

With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067.

302: Duration of Copyright: Works Created on or After January 1, 1978

The sections I selected here relating to death really deserve a read. It makes sense that something that is 280 pages long goes into excruciating detail, but because most people are scared of the law, they don't actually see the detail.

(d) Records Relating to Death of Authors.— Any person having an interest in a copyright may at any time record in the Copyright Office a statement of the date of death of the author of the copyrighted work, or a statement that the author is still living on a particular date. The statement shall identify the person filing it, the nature of that person’s interest, and the source of the information recorded, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall maintain current records of information relating to the death of authors of copyrighted works, based on such recorded statements and, to the extent the Register considers practicable, on data contained in any of the records of the Copyright Office or in other reference sources.
(e) Presumption as to Author’s Death.— After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefits of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title.

303: Duration of Copyright: Works Created but Not Published or Copyrighted Before January 1, 1978

I've got to cry dumb on "if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047." I will try to look into this a bit more and post an update for anyone interested.

304: Duration of Copyright: Subsisting Copyrights

This is, I think, the beastliest part of Chapter 3. Like all statutes, it's important to look at the structure. This one is broken down into four sections:

a) Copyrights in Their First Term on January 1, 1978.
b) Copyrights in Their Renewal Term at the Time of the Effective Date of the Sonny Bono Copyright Term Extension Act.
c) Termination of Transfers and Licenses Covering Extended Renewal Term.
d) Termination Rights Provided in Subsection (c) Which Have Expired on or Before the Effective Date of the Sonny Bono Copyright Term Extension Act.

Most people reading this will likely not have created musical works before 1978. Recording music in 1978 required expensive equipment. People weren't doing silly things like making fake retro Freak Fandango Orchestra songs. However, people might want to re-appropriate something from 1972, like say this video from MC5, and thus it is important to understand copyright duration from that era.

The last two sections deal with termination, and that deserves a post all to itself on another day.

305: Duration of Copyright: Terminal Date

This one is pretty short.

All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire.
Yep, that's it.


Intellectual Property: Private Rights, The Public Interest, and the Regulation of Creative Activity: Second Edition.  Pages 237-39, 254-55, 1182.

YouTube Videos

1) The Public Domain is a disgrace to the forces of evil. The specific link in the last sentence is to the chapter on duration, but the whole piece is pretty good.
2) I have to say, I'm shocked that the comments have been disabled on this YouTube video. Pro-copyright though it may be, it's still a pretty good description of the law.
3) If you've watched the other two, this one is a little more even-handed than the other two, but again, it deals with all of copyright law, not just duration.

Explaining Copyright Term and Fair Use - I am sure to use a lot of her material throughout the summer.

Other Podcasts

The Surefire Way to End Online Piracy: End Copyright
Copyright Recapture - Mostly about Section 203, but I assume many people would think termination/recapture is a part of duration. According to the statute, it is not!
The U.S. Supreme Court’s Golan v. Holder Decision
- The case that really has to do with duration is Eldred v. Ashcroft, but since this decision relies heavily on Eldred, I thought I would list the podcast here.