Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status

D-Lib Magazine 13: 7/8 (July/August 2008) It has long been known that most of the works published from 1923 to 1964 in the US are currently in the public domain. Both non-profit and commercial digital libraries have dreamed of making this material available. Most programs have recognized as well that the restoration of US copyright in foreign works in 1996 has made it impossible for them to offer to the public the full text of most foreign works. What has been overlooked up to now is the difficulty that copyright restoration has created for anyone trying to determine if a work published in the United States is still protected by copyright. This article discusses the impact that copyright restoration of foreign works has had on US copyright status investigations, and offers some of new steps that users must follow in order to investigate the copyright status in the US of any work. It argues that copyright restoration has made it almost impossible to determine with certainty whether a book published in the United States after 1922 and before 1964 is in the public domain. For digital libraries that wish to offer books from this period, they can do so at some risk

The Power of Collaboration: WorldCat\u27s Copyright Evidence Registry

One of the underlying obstacles to reproducing older books is that there\u27s no central place to look for information about what is protected by copyright and what may have passed into the public domain. Responding to this need, OCLC recently introduced a new system for tracking various copyright details for published books. The new service, still in beta, is called the WorldCat Copyright Evidence Registry (CER). It could be a very valuable resource for recording and sharing copyright status information

Golan v. Holder: Copyright in the Image of the First Amendment

Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign works previously thought to belong to the public domain. The Tenth Circuit upheld the legislation, but not without noting that it appeared to raise important First Amendment concerns. The Supreme Court granted certiorari. This article addresses the issues in the Golan case, literally on the eve of oral argument before the Court. This article first considers the Copyright and Treaty Clauses, and then addresses the relationship between copyright and the First Amendment. The discussion endorses an understanding of that relationship in which the Amendment is newly seen as paramount, and copyright is newly seen in the image of the Amendment

Copyright Law v. Trade Policy: Understanding the Golan Battle Within the Tenth Circuit

The Tenth Circuit seems to be in a battle with itself over the meaning and definition of our copyright system. In the last two years, the Tenth Circuit defined the public domain as a constitutionally protected component of the copyright system, and then reversing itself, defined copyright (ignoring the public domain) as a tool for international trade, where treaty obligations outweigh tradition. The Golan case stands at the center of competing priorities and definitions. How are we to understand the "physics" of the public domain within contemporary copyright law? Does copyright have principles and an internal logic to foster creativity, or is copyright to be seen as malleable tool for trade and international relations? Judge Henry in the 2007 Tenth Circuit Golan v. Gonzales stated that under the traditional contours of copyright, what comes into the public domain, stays in the public domain. With this came a First Amendment right to use public domain works, and he remanded the case back to the district court to further determine whether the statute in question required content-based or content-neutral First amendment analysis. This decision marked the first time a part of the copyright law had been found unconstitutional, and it also marked a moment where the public domain appeared to be protected by the U.S. Constitution. Upon appeal from the district court remanded decision, the Tenth Circuit appeals court—albeit with a different chief judge—found the same statute not in violation of the First Amendment, and perfectly in line with the United States' treaty and international obligations. In this opinion, works in the public domain were fair game, particularly because their restoration would somehow help American authors indirectly. Copyright was merely a tool for trade law, and, because of this, any alteration was acceptable and necessary

The Situation of Orphan Works under Different Jurisdictions

The article analyses the situation of orphan works solutions under several different international jurisdictions, examining each jurisdiction in turn. Various solutions for addressing the problem of orphan works are provided by the jurisdiction of each country, the most comprehensive scheme being offered by the law of the United Kingdom. The UK provides three types of solution: an exceptions-based model, compulsory licensing and extended collective licensing. The author demonstrates that as this problem largely has emerged with the proliferation of technology, some countries have not considered orphan works an issue serious enough to take steps to address. Some countries are still examining the situation and working on finding a suitable solution to the problem. Considering various factors affecting a country’s options, any chosen solution to the problem of orphan works would need to reduce the risk of a county being found liable for the use of these works

An Orphan Works Affirmative Defense to Copyright Infringement Actions

Laurence Peter once said that [o]riginality is the fine art of remembering what you hear but forgetting where you heard it. Yet that clever quip is itself unoriginal. Although there may be nothing new under the sun--the arrangement of different bits of existing cultural matter in new and interesting combinations is the source of much originality. Yet today much of our cultural raw material is outside the reach of creators because of the orphan works problem. This problem renders untouchable a large swath of existing artistic, literary, and other works because if a work\u27s copyright owner cannot be found to secure their permission to use the work, then no one will ultimately use the work lest they risk liability for copyright infringement. Several solutions to this problem have been suggested, but most proposals are cumbersome or incompatible with political and legal reality. However, there might be a simple solution to the orphan works problem that respects the rights of copyright owners while freeing up works for which the rightsholders cannot be found. If a would-be user of a copyrighted work completes a reasonable search in good faith and fails to find the rightsholder, the user should be able to use the work. If she is later sued, she should be able to defend in court by showing that she diligently did her best to find the copyright owner. Copyright law does not provide for such an affirmative defense right now. Part I of this Article defines the orphan works problem and provides examples of how it interferes with the use of creative works. Part II describes the causes and costs of the orphan works problem. Part III outlines and critiques four of the leading proposed solutions to the orphan works problem. Part IV proposes a new and practical solution to the orphan works problem

Is it in the Public Domain?

This Handbook is intended as an educational tool to describe generally when a work created in the United States between January 31, 1923 and December 31, 1977—the range of dates that covers most works that were created under the Copyright Act of 1909 (“1909 Act”) and that may still be protected by copyright—is likely to be protected by copyright today and when it is likely to be in the public domain