Preserving the Unpublished Public Domain
WORKING WITHIN THE BOUNDARIES OF INTELLECTUAL PROPERTY: INNOVATION POLICY FOR THE KNOWLEDGE SOCIETY, edited by Rochelle C. Dreyfuss, Harry First, & Diane L. Zimmerman, Oxford University Press 2010, Chapter 3
26 Pages Posted: 11 Jun 2012
Date Written: 2010
In January 2003, the U.S. copyright expired in unpublished works by every author who had been dead for at least 70 years. This happened because provisions adopted in the 1976 Copyright Act broke with all prior U.S. copyright law, which had offered unpublished works potentially perpetual protection, and imposed a finite term of protection for those works, creating a new unpublished public domain. In light of other recent expansions of copyright law, the creation of this new unpublished public domain provided a welcome ray of sunshine to those who favor a strong public domain.
There are, nonetheless, some dark clouds on the horizon for public domain supporters. Although older unpublished works are now in the public domain as a matter of copyright law, it may remain possible for those who own the physical embodiments of such works to use their personal property ownership to condition access to those works - for example, by requiring those to whom they grant access to the work to agree not to publish it. Furthermore, European Union nations have adopted a harmonized “publication right” that gives the first person to publish a previously unpublished public domain work 25 years of copyright-like protection.
This chapter considers how those interested in maximizing the public-domain status of older, unpublished works can, in light of these potential impediments, work within the boundaries of existing law to do so. Holders of unpublished public domain material - especially archives and museums - must be encouraged to use contracts that restrict publication of such material in their collections as sparingly and responsibly as possible, an approach largely in concert with the articulated norms of professional archive and museum communities. In addition, those who hold unpublished public domain materials should work to get those works published in such a way that the EU’s publication right does not attach to those works, or that the holder of the publication right does not exercise it to restrict further use of the works.
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