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  • In the case of private, unpublished material, how do we reconcile privacy with access?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.

 

 

SCORE Intellectual Property Basics Recap

On Thursday I had the privilege of giving a presentation on intellectual property law along with my friend, Michael Gu, to some of the small business owners at Boston SCORE. We covered patents, trademarks, copyrights, and trade secrets. Here’s a quick recap of some of the main takeaways.

Trademarks

Use it or Lose it

Trademark rights arise from use, whether your mark is registered or not. If you’re using your trademark on a "common law" basis (using it without registering it), your rights cease when your use ends. Even if you have a registered trademark, your registration will be cancelled if you fail to show proof of continued during your renewal period.

U.S. Registration is a Legal Proceeding – Get Assistance

Applying for a federal trademark registration is a process involving substantive legal analysis and adherence to strict deadlines. It isn’t as straightforward as applying for a business certificate or filing to create a new entity. For example, responding to an examining attorney’s refusal to register a trademark requires legal argumentation similar to that of a motion in litigation. To that end, it’s strongly recommended that you hire an attorney. Even the USPTO recommends retaining a lawyer. *cough*

Use your Mark Properly

You threaten your trademark rights when you don’t use your mark properly. Some tips for proper use include

  • Using the trademark consistently
  • Using the trademark as an adjective, not a noun or a verb
  • Using trademark notices (TM/SM if it isn’t registered, ® if it is)

Copyrights

Check out my AIGA presentation recap for an overview of basic copyright law.

Patents

Patentable Subject Matter

“Anything under the sun that is made by man” may be patentable. However, patents don’t protect abstract ideas, laws of nature, and natural phenomena. Moreover, the invention must be useful, novel, and non-obvious.

Rights Granted

Patents grant the exclusive right to exclude others from making and using your patented invention. The right must be affirmatively asserted, it isn’t automatic. The right is also limited in geographic scope: a U.S. patent cannot be enforced outside of the U.S.

Visit www.uspto.gov/patent or contact a licensed patent agent or patent attorney for more information.

Trade Secrets

What is a Trade Secret?

A trade secret is information that (1) derives independent economic value from its not being generally know and not being readily ascertainable by other persons; and (2) is subject of reasonable efforts to maintain its secrecy.

The Law Varies from State to State

While many states have adopted the Uniform Trade Secrets Act in some form, a number of states, including Massachusetts, have not. Some protect trade secrets by separate statute, and others protect them under common law.

Closing Thoughts

This was another fun presentation with a very active audience. My Kevin James joke bombed – I guess even I can’t make Paul Blart funny, but you can’t win ‘em all. Thanks again to Boston SCORE for letting us give the presentation, and thanks to Harvard Ed Portal for letting us use their cool location.

As always, if you have any questions about copyright or trademark, don’t hesitate to contact me!