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Is it in the Public Domain? Review by Peter Hirtle

[UPDATE from Peter Hirtle: That didn’t take long.  The authors of the handbook have responded to my specific issues below by updating and/or correcting the handbook.  A new version is available at http://www.law.berkeley.edu/files/FINAL_PublicDomain_Handbook_FINAL(1).pdf.  A very good resource has become even better.]

Stanford Copyright and Fair Use Center Advisory Board Member Peter Hirtle reviews Is it in the Public Domain?

Hirtle

Peter Hirtle, Stanford Copyright and Fair Use Center Advisory Board

It is very difficult to determine whether works are in the public domain in the United States.  That is why I had to create my duration chart as an aide-mémoire: any time I tried to remember the various options, I got them wrong.  It is also why I felt compelled to write an article highlighting some of the traps lurking within the seeming clear-cut categories.  And it is why Stephen Fishman needs 700+ pages in his legal treatise, Copyright and The Public Domain.

Public Domain Logo by Creative Commons / CC BY

Public Domain Logo by Creative Commons / CC BY

Now the good folks at the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, School of Law have stepped into fray with a new publication. Is it in the Public Domain? is described as “A handbook for evaluating the copyright status of a work created in the United States between January 1, 1923 and December 31, 1977.” It consists of a set of questions and charts to help readers determine the public domain status of works created under the Copyright Act of 1909. The obvious question is “How good is it?”

The answer has to be “not bad,” especially when one takes into account the complexity of the legal environment for these works.  For example, it is not enough to talk just about the 1909 Act.  A work created before 1978 but first published after that date is governed by the rules of the 1976 Copyright Act, as amended.  That means the section on duration must account for the different rules that govern five different publication periods.  The handbook does that nicely.  The chart on p. 26 that explains copyright notice requirements for different kinds of material is the clearest that I have seen; I expect to use it frequently. The “tips,” “traps,” and “special cases” that are highlighted throughout the text are particularly valuable.

As one would expect, however, with such a complex area of the law, there are elements that are left out or glided over.  The handbook is an excellent resource if the material you are examining is relatively straightforward, but the handbook does not elucidate the copyright status of all works created in the U.S. before 1978.

Perhaps the most problematic part of the handbook is Chapter 1 on Subject Matter. The handbook notes that “Nearly all works created between January 1, 1923 and December 31, 1977 will qualify as valid subject matter.” It then lists the categories of material that could be registered for copyright.  I think they are trying to establish the important point that while unpublished works in general were not protected under the 1909 Act, certain unpublished works – primarily those that might be performed in public – could be registered and receive federal copyright protection.  Those works have a different duration than other unpublished works that were never registered.

I worry, though, that some might read the list of registration categories as an absolute list of what could be protected by copyright. Both the 1909 list and a similar list in the 1976 Act are illustrative, not exclusionary.  Works that fall outside of the list could still be protected by copyright.  The handbook authors know this. In their flow chart, they note that a “yes” response to the question of whether a work corresponds to one of the listed subject categories means that the work could be protected by copyright, but they do not show a corresponding “no” response as injecting the work into the public domain.  In addition, there is no discussion of how broadly the categories could be interpreted.  Software, for example, can be protected as “a writing of an author.”  Advertisements are protected as literary or graphic works, even though they are not in the subject list.  Finally, in light of the decision inBridgeman v. Corel, there is some question as to whether copyright can exist in one of the categories specified in the 1909 Act: reproductions of works of art.

Many have found it easier to discuss what cannot be protected by copyright rather than try to define what is included.  I think such an approach would help this handbook.  One would learn, for example, that works of the Federal government are in the public domain, an exception that is missing from the handbook.  The same with court decisions, recipes, typeface designs, works of architecture, and useful articles (some of which are mentioned in passing).

An even larger problem arises from the handbook’s failure to discuss adequately issues that arise from the nationality of the creator and the place of publication.  I have argued that the law that restored copyright to foreign works has made it almost impossible to determine with certainty the copyright status of many U.S. works.  The handbook in its title and first few pages indicates that it governs works “created” in the U.S. but then fails to develop the theme.  But a work created in the U.S. by a foreign national who then publishes it abroad would not be subject to the flow charts in the handbook.  The handbook’s analysis does a good job with unpublished works created in the U.S. and published works that are first published in the U.S. (regardless of place of creation).  But there are traps here for the unwary, and more explication would have been good.

The handbook’s failure to acknowledge the monkey wrench thrown into the mix by copyright restoration also leads to some blanket statements that could be misinterpreted.  For example, we learn on p. 8 that “Sound recordings created before February 15, 1972 are protected by a patchwork of state laws.” Copyright in foreign sound recordings made after 1923 was “restored” by 17 U.S.C. § 104A. One could imagine a recording made by Vladimir Horowitz in the U.S. before 1944 that was only released by a European record label; that recording would likely be protected as a foreign work.

In comparison to problems with subject matter, the other mistakes in the handbook are minor.  One of the periods discussed under general publication is “Between March 1, 1989 and January 1, 2002.” It should read “January 1, 2003.” In several spots, the handbook mentions that Copyright Office records can be searched in the Copyright Office or one can hire the office to do it for you.  It might have been good to discuss as well the use of theCatalog of Copyright Entries and the offshoots from it such as the Stanford Copyright Renewal database. The handbook’s discussion of what constitutes an acceptable copyright notice omits the use of ℗ (“P” in a circle), the phonogram symbol used with post-1972 sound recordings (though it is included in the excellent chart on notice requirements). On p. 35, the handbook states that “some states have decided to grant protection until 2067.” I was aware that California protects sound recordings through 2047, but I was not aware of any other states that had temporal protection limits.  I would have liked to have seen a footnote.  Finally, the text tells us that “this Handbook is only accurate up to the date it was published—August 10, 2012.”  However, the cover carries a publication date of January, 2014 and it was announced on 27 May 2014.  I can’t think of any significant changes to the law since 2012, but it would nice to know for sure what is its “sell-by” date.

These are minor quibbles, however.  For anyone who has a work that is clearly a US work (i.e., a U.S. author living in the U.S. and, if published, published first in the U.S.) would be well-served by this guide.  It won’t identify all works that are in the public domain (for example, U.S. government works).  Nor does it discuss divestive public display (i.e., without restrictions on copying) that likely injected many works of art into the public domain.  And it won’t guarantee that someone who thinks that they have rights in a work might not object strenuously to a contrary interpretation.  As the introduction to the handbook notes:

It does not describe how the law might apply to any specific work. It is not a complete discussion of all legal issues that may arise when deciding whether or how to use a work, nor is it a substitute for legal advice. Further, two courts may reach different conclusions about the copyright status of a work based on the same set of facts. Accordingly, using this Handbook does not guarantee the accuracy of any assessment of copyright status with respect to an individual work, and does not shield you from liability for copyright infringement…Further, even if a work is in the public domain with regard to copyright, using it may raise legal concerns outside of copyright, such as concerns related to privacy rights or contractual restrictions on the work’s use. This Handbook does not cover any of these other legal issues.

But within the context of these reasonable caveats, the handbook has met its goal. I will be sure to add it to my list of recommended resources.