Academic journal article Boston University Law Review

Notice Failures Arising from Copyright Duration Rules

Academic journal article Boston University Law Review

Notice Failures Arising from Copyright Duration Rules

Article excerpt

Introduction

For the first 188 years of U.S. history, copyright terms were measured by a set term of years, dating from the work's first registration or publication, and were renewable for another set term if the owner of the rights complied with the formalities necessary to accomplish this.1 Because the law required owners to give notice of their claims of copyright on published copies of their works,2 it was possible to know with reasonable certainty when those copyrights would expire, as well as when the work was published and who claimed to own those rights.3 Because most copyright owners did not renew their copyrights, the overwhelming majority of published works went into the public domain within a few decades.4

Since 1978, copyright terms for individual authors have commenced at the moment of first fixation of their works in a tangible medium and lasted for the authors' lives plus fifty (now seventy) years.5 Since 1989, copyright owners have been relieved of the obligation to put notices on published copies of their works.6 Because the life-plus model was not applied retroactively, it is still possible, barring future copyright term extensions, to know when pre-1978 works will enter the public domain because those works remain subject to set terms.7 Works for hire, along with anonymous and pseudonymous works, also have set terms, although these terms are now so long-ninety-five years from publication or 120 years from creation8-that, practically speaking, they might as well be infinite.9

Congress had its reasons for making these changes to copyright duration and notice rules in 1976 and 1989, but it gave little thought to the costs that these changes would impose on future creators and prospective users.10 Since then, it has become apparent that the combination of lengthened copyright terms and lessened incentives to use copyright notices has produced some significant notice failures.11 Many who want to license uses of protected works encounter difficulties in finding out who owns what rights (if any) in which works, how long those rights will last, and on what terms licenses may be available.12 Cultural heritage institutions, such as libraries, archives, and museums, are often inhibited from making some socially valuable uses of works in their collections because of copyright restrictions.13 Many of these works have little or no commercial value; yet they may have historical or cultural heritage significance and may be valued by scholars and other researchers.14 If copyright is to achieve its constitutional purpose of "promoting] the progress of science,"15 solutions need to be found to overcome the notice failures that Congress created with changes to duration and notice rules.

Part I of this Article discusses the societal benefits of the pre-1978 copyright duration and notice regime. This era was not without some notice problems, but by comparison with the present copyright regime, it was a notice-friendly system.16 Part II considers reasons for the shift to the life-plus model, along with one long set term for works for hire, to replace the renewable term model. There was some awareness that the life-plus model would pose notice difficulties, but those difficulties were underappreciated.17 Part III offers numerous suggestions for how to overcome the notice problems that now beset copyright arising from its duration regime.

I. The Pre-1978 Notice-Friendly Copyright Duration Rules

For almost two hundred years, U.S. copyright law measured the duration of exclusive rights granted to authors based on a set period of years (assuming compliance with notice formalities), which could be extended for another set number of years (by complying with a formality in the last year of the first term).18 Renewal was initially dependent on the author being alive in the last year of the first copyright term, but in 1831, Congress allowed surviving spouses to renew in the final year of the first term. …

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