[pd-discuss] Copyright on unpublished or recently-published works from long-dead authors

Tue Dec 15 20:25:57 UTC 2015

Hi Adam:

I can speak to US aspects of your question, though we don't have enough information to come up with a final answer.

Prior to 1978, copyright in unpublished material in the US was perpetual.  With the publication of the MSS in 1939, statutory limited copyright may have kicked in.  Federal copyright term could last up to 95 years if all formalities were followed.  See my chart on copyright duration in the US at http://copyright.cornell.edu/resources/publicdomain.cfm.  This is why the oldest thing that I can find that is possibly still protected by copyright in the US is from 1753 (see http://blog.librarylaw.com/librarylaw/2010/03/factoids-what-is-the-oldest-work-protected-by-copyright-in-the-us-what-work-will-have-the-longest-protection.html and http://blog.librarylaw.com/librarylaw/2010/04/the-search-for-the-oldest-copyrighted-work-in-the-us-goes-on.html).

Now, a couple of caveats to this general rule:

*         Publication had to occur with the permission of the copyright owner.  If the copyright heir of your poet did not authorize the publication in 1939 or after, the work would have remained unpublished in copyright terms.  It would have entered the public domain on 1 January 2003.  (This, BTW, was one of the issues in the recent lawsuit about the song "Happy Birthday." It was not clear whether the copyright owner had ever authorized the publication of the lyrics of the song - even though the lyrics had been published multiple times.  An argument could be made that the lyrics to "Happy Birthday" remained "unpublished.")

*         You said the work was published in the UK in 1939.  It would have had to have been printed in the US to have received copyright protection, otherwise it would have entered the public domain in 1939 in the US upon publication in the UK.  The work's copyright would have been eligible for restoration on 1 January 1996, but only if it was protected by copyright in the UK on that date.  If it was protected by copyright in the UK, it would have received a 95 year copyright term from the date of publication.  I believe (but someone please correct me if I am wrong) that the posthumous copyright term for first publication in the UK was 50 years, so a 1939 work should have entered the public domain by 1996 (though I don't know if the UK has similar requirements as the US regarding authorization for copyright protection).

*         Remember, too, that newly published work often has with it scholarly apparatus that can receive its own copyright.

As far as ownership of the copyright in a work whose copyright owner is unknown, the US does not have an orphan works scheme as is followed in the UK.  There is no agency to which one can apply to secure permission to publish an orphan work.

Peter B. Hirtle, FSAA
Member, SAA Intellectual Property Working Group
Affiliate Fellow, Berkman Center for Internet & Society, Harvard University
phirtle at cyber.law.harvard.edu<mailto:phirtle at cyber.law.harvard.edu>
peter_hirtle at harvard.edu<mailto:peter_hirtle at harvard.edu>
peter.hirtle at cornell.edu
http://vivo.cornell.edu/display/individual23436
Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums:
http://hdl.handle.net/1813/14142

From: pd-discuss [mailto:pd-discuss-bounces at lists.okfn.org] On Behalf Of Adam Green
Sent: Tuesday, December 15, 2015 2:47 PM
To: Public Domain discuss list
Subject: [pd-discuss] Copyright on unpublished or recently-published works from long-dead authors

Hello,

I have a question regarding copyright on unpublished or recently-published works from long-dead authors, which I was hoping the list might be able to shed some light on.

The scenario involves an author who died in the 17th-century. He put pen to paper and created a poem, but it was never published in his lifetime. In the 1930s the manuscript is discovered in some long-forgotten draw and then published- in the UK, in 1939. And then republished in a few collections since.

I know that public domain laws vary around the world, so I guess I'm thinking about the US and the EU as two main regions it would be interesting to know about.

So far I've gathered that, for unpublished works:
- in the US the copyright  is "life of the author + 70 years"
- in the UK until 31/12/2039 (which is absolutely ridiculous!).

For the work of my scenario outlined above (first published in 1939), things are less clear. I can't see anything clear in what I've read. Would anyone be able to help out with this? Or point me to some a good source which would tell me?

I was also wondering, in the case of the totally unpublished work, about who actually owns the copyright. Say there is a written manuscript penned in 1650 by a Mr. Joe Bloggs. In the US he'd be out of copyright, but in the UK, not until 2039. If Joe Bloggs has no discernible estate as such then who actually owns the copyright? Would one be able to publish this work (for the first time) without permission? If not, who is one meant to get permission from? Is the library or archive that holds this manuscript in some way involved?

Thanks in advance for any help you can give,

All the best,

Adam.

--

Adam Green

Editor-in-Chief, The Public Domain Review<http://publicdomainreview.org/>

@PublicDomainRev<https://twitter.com/PublicDomainRev>
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