Re: Justice Stevens' dissent in Eldred

On Monday, January 27, 2003, at 08:59 AM, Joseph P. Bauer wrote:
> A minor point re: Eldred
>
> In his dissent, in Part VI of his opinion, Justice Stevens notes that

> "only one year's worth of creative work -- that copyrighted in 1923

-- 


> has fallen into the public domain during the last 80 years."  That 

> seems wrong to me.  Even with all the interim extensions while the

1976 


> Act was being considered, some works went into the public domain each




> year before 1978.  Then, in 1978, works first published in 1921 went




> into the public domain.  Did he made a mistake, or do I have this all




> wrong?

>




>>> Tim Phillips hrothgar[_at_]telepath.com 01/28/03 04:45PM >>> replied:

Justice Stevens made a mistake, and so did you.  Works from early 1906
went into the public domain throughout 1962--there was no January 1st
rule then.  Works from the latter part of 1906 went into the public
domain in January 1st, 1982.  Thereafter a year's worth of renewed
copyrights in published works went into the public domain on January 1st
every year until 1988.
<<<<<

Mr. Phillips is correct.  To be precise, the first "interim" extension
was enacted on Sept. 19, 1962.  All works published before Sept. 19,
1906 were already in the public domain on that date, and were not
revived.  All works which were scheduled to fall into the public domain
on or after that date were extended and were kept alive by the nine
interim extensions until the 1976 Act was passed.  The 1976 Act extended
all of those works to 75 years from the date of first publication, and
extended all copyrights to Dec. 31 of the year in which they would
otherwise expire.  Hence, works first published between Sept. 19, 1906
and Dec. 31, 1906 (and properly renewed) went went into the public
domain  on January 1, 1982, as stated; and a years' worth of copyrights
entered the public domain on January 1 each year thereafter.

What Justice Stevens should have said is that since January 1, 1978
(the effective date of the 1976 Act), only a years' worth of copyrights
(those first published in 1922) have entered the public domain that
would not have entered the public domain before that date under the 1909
Act.  That's technically correct, with the two exceptions noted below.

[An aside: Justice Ginsburg said there was no evidence that Congress
was trying to establish a perpetual copyright.  How about this: except
for the 1962 interim extension, the CTEA was the first time that
copyrights previously extended under a general revision were extended
for a second time; it was the first time term extension was enacted
separately from a general revision of the copyright laws; and if the
CTEA had been enacted in 1995, when it was first sought, even works from
1922 would not have entered the public domain.]



>>>>>

Unrenewed copyrights went into the public domain every year until the
automatic renewal statute cut off this source of public domain.
<<<<<

Also correct.  FYI, renewal became automatic on Jan. 1, 1992, for works
first published in 1964 and later.



>>>>>

U.S. Government works are always in the public domain, but Justice
Stevens obviously wasn't counting those.
<<<<<

He also wasn't counting works that were created but not published
before 1978, which remained unpublished through 2002, and were written
by authors who died before 1933.  All of those works entered the public
domain on Jan. 1, 2003.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu