Digital Law Online: Duration

The term of protection has been progressively expanded from 14 years, with a 14-year renewal, to the life of the author plus 70 years (or 95 years after first publication for some works). The term for a work created on or after January 1, 1978, is given in Section 302:

(a) In General.– Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.

(b) Joint Works.– In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death.

(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire.– In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. . . .

(d) Records relating to death of authors.– Any person having an interest in a copyright may at any time record in the Copyright Office a statement of the date of death of the author of the copyrighted work, or a statement that the author is still living on a particular date. The statement shall identify the person filing it, the nature of that person’s interest, and the source of the information recorded, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall maintain current records of information relating to the death of authors of copyrighted works, based on such recorded statements and, to the extent the Register considers practicable, on data contained in any of the records of the Copyright Office or in other reference sources.

(e) Presumption as to author’s death.– After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefit of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title. {FN56: 17 U.S.C. §302}

One way to think of all these various terms is to say that any copyright lasts until 70 years after the death of the author who lives the longest, and that an author is presumed to have died 50 years after a work is created or 25 years after it is published, whichever comes first. The Copyright Office can be informed of the actual date of death of the author, or that the author is still alive, for authors that are people, but not for authors that are companies (as is the case for a work made for hire) or for unidentified authors.

So that one need not quibble about the exact date of the death of an author, Section 305 provides that “All terms of copyright . . . run to the end of the calendar year in which they would otherwise expire.” It doesn’t indicate a particular time zone for determining when the year ends.

II.G.1. Why So Long?

How long a copyright should last is a very controversial subject. In the report that accompanied the passage of the Copyright Act of 1976, the drafters gave a number of reasons why they went from a term of 28 years, with the possibility of renewing for another 28 years, to a term of the life of the author plus 50 years: {FN57: H.R. Rep. No. 94-1476 at 134-135}

1. The present 56-year term is not long enough to insure an author and his dependents the fair economic benefits from his works. . . .

2. The tremendous growth in communications media has substantially lengthened the commercial life of a great many works. . . .

3. Although limitations on the term of copyright are obviously necessary, too short a term harms the author without giving any substantial benefit to the public. . . .

4. A system based on the life of the author would go a long way toward clearing up the confusion and uncertainty involved in the vague concept of “publication,” and would provide a much simpler, clearer method for computing the term. . . .

5. One of the worst features of the present copyright law is the provision for renewal of copyright. . . .

6. Under the preemption provisions of section 301 and the single Federal system they would establish, authors will be giving up perpetual, unlimited exclusive common law rights in their unpublished works, including works that have been widely disseminated by means other than publication. . . .

7. A very large majority of the world’s countries have adopted a copyright term of the life of the author and 50 years after the author’s death. . . .

In 1998, Congress again extended the term of copyright, this time to life plus 70 years. This was to harmonize the term with that of Europe, so that American authors would not be disadvantaged.

Under “the rule of the shorter term,” member states need only protect the work of foreign authors to the same extent that they would be protected in their country of origin.

In 1995, the European Union extended the copyright term for all of its member states from life of the author plus fifty years to life of the author plus seventy years. As the world leader in the export of intellectual property, this has profound effects for the United States if it does not extend copyright term as well.

European Union countries, which are huge markets for U.S. intellectual property, would not have to provide twenty years of copyright protection to U.S. works and the U.S. would lose millions of dollars in export revenues. {FN58: H.R. Rep. No. 105-452 at 4}

The copyright term extension was challenged in Eldred v. Reno, {FN59: 239 F.3d 372, 57 USPQ2d 1842 (D.C. Cir., 2001)} as against the constitutional provision that permits copyrights for only “limited times.” The argument was that if the term of copyright protection is extended right before it is about to expire, it effectively exceeds a limited time. In addition, it was argued that a retroactive extension of copyright term for existing works can’t benefit “the progress of science and the useful arts” because those works are already in existence and the extension simply keeps them from entering the public domain sooner. But every copyright term extension, starting in 1831 with changing the basic term from 14 to 28 years, have been applied retroactively to works still under copyright.

The Court of Appeals for the District of Columbia Circuit found that Congress acted within its authority when it extended the copyright term. The case is now on appeal to the Supreme Court, to be heard during its October 2002 term. [On January 15, 2003, the Supreme Court upheld the Copyright Term Extension Act. See Eldred v. Ashcroft.]

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