Public but Private: Copyright's New Unpublished Public Domain
81 Pages Posted: 9 Mar 2008
Date Written: March 1, 2007
This article studies the implications of a recent radical innovation in American copyright law, which has received little attention in copyright scholarship. Traditionally, U.S. copyright law protected an unpublished work as long as it remained unpublished (potentially in perpetuity), and then continued to protect it for a period of years after publication. The article first explains how, starting in 2003, a change to U.S. copyright law took effect that resulted in the copyright expiring on virtually every work of authorship that was created by anyone who died more than 70 years ago and that has never been published.
Next, the article categorizes unpublished works and explores the quantity and quality of the various types, especially private works (such as journals, correspondence, never-published literary manuscripts, etc.) and preparatory works (early drafts of works that were later published in revised form).
The article then surveys the implications of placing unpublished works in the public domain. Ending indefinite copyright protection is one of the few ways in which copyright protection has been reduced in recent decades and will facilitate much greater use of unpublished material. Because many other countries continue to protect older, unpublished works, the United States is largely pioneering unknown territory by eliminating copyright for such works, and unpublished material that is in the public domain in the United States may remain protected elsewhere. Most significantly, this change fundamentally alters our conception of the public domain, which until now has always been a body of material that both is legally free for the public to use and has been made available to the public. The evolution of the public domain to include a significant amount of unpublished material may affect the legal regulation of the public domain.
In that regard, the article considers how those who own copies of unpublished public domain works (such as archives) may use legal mechanisms other than copyright law to continue to control those works. They may, for example, try to control whether a work gets published by allowing access to that work only under a contract that bars any publication. While such contracts might be seen as interfering with federal copyright policy, the article argues that copyright law probably would not preempt the enforcement of such contracts. Once unpublished public domain works are finally published, the publishers might wish to prevent competitors from using those works. They might therefore attempt to persuade Congress to grant them some period of exclusive, copyright-like protection, pointing to recently enacted laws in the European Union that in fact grant a 25-year copyright to the first person to publish a previously unpublished public domain work. The article explains why the Constitution may well give Congress the power to grant such a "publication right" in public domain works, but why such a right would be undesirable.
Keywords: Copyright, public domain, unpublished works
JEL Classification: K39, O34
Suggested Citation: Suggested Citation