Is It In the Public Domain? Answer These 5 Questions to Calculate a Work’s Copyright Term
Imagine you’ve found an interesting old book and want to republish it. You’re thinking of building a website based on it — maybe a membership site. Before you go ahead, you need to know if the book still protected by copyright or in the public domain in the U.S. How do you find out?
The Copyright Office won’t tell you. You could ask a lawyer, but that will cost you. Or you can answer 5 questions about the work, apply a few rules, and calculate the work’s copyright term yourself. Sound good?
Here are the 5 questions.
1. Is the work published?
You can’t know how long the copyright term will last if you don’t know, first of all, if the work has been published.
If the work is unpublished, its copyright term will last for 70 years after the author’s death. If it’s a corporate work (a work for hire), the copyright will last for 120 years after the date the work was created.
And if the work has been published? Its copyright term depends on the publication date.
2. When was the work first published?
When it comes to published works, you have to know which copyright rules apply. The 1909 Copyright Act applies to works published through December 31, 1977. The 1976 Act applies to works published on or after January 1, 1978.
Still with me?
Here are three general rules (maybe you’ve seen them before):
- Works that were first published before 1923 are in the public domain.
- Works published on or after January 1, 1978 are protected for 70 years after the author’s death.
- Works published during 1923 through March 1, 1989 are protected as long as the formalities of copyright notice and/or renewal were observed.
However, reading rules doesn’t always make it clear whether something is in the public domain. And an important thing “general rules” can’t help you do is keep track of how those rules are interpreted by the courts … which brings us to our next question.
3. Where was the work first published?
Works first published outside the U.S. from 1909 through 1977 might have a different copyright term than those first published in the U.S. during the same period. It all depends on whether the work was published with a valid copyright notice.
Here’s the deal. In 1996 the Ninth Circuit Court of Appeals decided that works first published outside the U.S. without a copyright notice should be treated the same as unpublished works until such time as they’re republished with a valid copyright notice.
The rule of this decision applies to you if you live in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, or the Northern Mariana Islands. It’s still unclear whether other courts will follow this decision, but you should know about it.
4. Was the work published with a copyright notice?
Under the 1909 Act (which applies to works published through December 31, 1977), if a work was published without a copyright notice it went straight into the public domain.
Under the 1976 Act (which applies to works published on or after January 1, 1978) copyright exists automatically, as soon as the work is fixed in a tangible medium of expression. But here’s something else to keep in mind: copyright notices were still required until March 1, 1989.
5. Was the copyright renewed?
Works under the 1909 Act got two 28-year copyright terms. But the copyright owner didn’t get the second term unless he or she filed a renewal application with the Copyright Office. If the renewal application wasn’t filed on time, before the 28th year expired, the work entered the public domain.
But this rule doesn’t apply to all works under the 1909 Act. Thanks to a 1992 amendment to the copyright law, renewal is automatic for works published from 1964 through 1977.
Okay, let’s review.
To calculate a work’s copyright term all you’re doing is applying rules to facts in a series of steps, right? But what a pain! Who wants to memorize all these rules?
You don’t have to memorize them. Instead, you can use a free copyright term calculator that applies the right rules at the right time. It asks you only as many questions as it takes to reach the answer. (It even knows that crazy Ninth Circuit rule.)
And if you can’t answer a question? The calculator tells you what the rule is. It also points you to helpful resources, so you can either do more research or make an educated guess. It’s like having your own copyright research assistant on call.
If you’d like to give the calculator a try, please follow this link: Copyright Term Calculator
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Barbara is the owner of http://www.publicdomainsherpa.com where she provides resources and information to help you find and use works in the public domain.