Copyright Duration

My wife is a library student studying for her MLIS and concentrating on archives management. For her Introduction to Archival Methods and Services class (still not as boring as Civil Procedure), she completed a brief unit on copyright law. Because she and I are both losers and would rather spend our Friday night talking about her homework than doing literally anything else, we had an interesting conversation about some of the legal challenges regularly faced by archives and archivists:

  • Who owns the records?
  • How do we reconcile copyright protection with access?
  • How do we handle physical documents possessed by the donor but authored by someone else?
  • In the case of private, unpublished material, how do we reconcile privacy with access?

Some of these issues will be determined by various privacy and record keeping statutes, but others will depend on copyright. Naturally, because an archives might receive collections during or after the creator's lifetime, copyright duration becomes extremely relevant, specifically, copyrights for works created prior to January 1, 1978.

Why is January 1, 1978 Important?

January 1, 1978 is the effective date of the Copyright Act of 1976, which, among other things, significantly changed the way we calculate copyright duration. The law prior to the ’76 Act was the Copyright Act of 1909. Under the 1909 Act, a work was protected by federal copyright law if it was either published (copies disseminated to the public) or registered. Federal copyright protection lasted for 28 years from the date of publication or registration, with an optional 28 year renewal term, for a maximum total of 56 years of protection.

Current Copyright Duration

The '76 Act changed the old system, eliminating the mandatory renewal for new works going forward. Now, for works created after January 1, 1978, the duration is either

  • For works by one author: the author’s life + 70 years
  • For works by two or more authors: the life of the last surviving author + 70 years
  • For anonymous, pseudonymous, or works for hire: 95 years from publication or 120 years from creation, whichever expires first

Copyright Duration for Works Created Before January 1, 1978

Determining copyright duration for older, pre-1978 works is a little more complicated because the calculation uses elements from both the 1909 and ’76 Acts.

The first step in the analysis is to determine whether the work was already subject to federal protection. In other words, was the work published or registered? If the work wasn’t published or registered, then we generally use the same calculation as we would for post-1978 works. Sounds easy enough. If the work WAS already subject to federal copyright protection, however, then we have some more work to do.

Protected pre-1978 works are still subject to the 1909 Act system, 28-year-plus-renewal term. Now, however, the renewal term has been extended from 28 years to 67 years, granting a total of 95 years of statutory copyright protection for those works. To determine copyright duration for these works, we need to know (1) the publication/registration date and (2) whether the work was its initial 28-year term or its renewal term on the effective date of the ’76 Act.

  • For works in their first term on January 1, 1978: copyright owner still had to voluntarily renew the copyright
  • For works in their renewal term on January 1, 1978: renewal term was automatically extended from 28 to 67 years
  • For works copyrighted between January 1, 1964 and December 31, 1977 (right before the effective date of the ’76 Act): the works would be automatically renewed, and renewal registration would be optional

Works that were published prior to January 1, 1923 are now public domain because the 95-year copyright term has expired.

I hope this information is useful. For more details, check out the Copyright Office’s Circular 6A, which describes copyright renewal, and Circular 15A, which explains copyright duration in more detail.

If you’re dealing with a copyright duration issue, it’s always a good idea to consult with a copyright attorney.

As always, if you have any questions, feel free to contact me.