Re: 1909 copyright law (Was: UK copyright term)

On 4/13/99, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
>
> On April 5, 1999, Tyler T. Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > I agree with the analysis of U.S. law. Anything first published in
> > 1922 or before is in the public domain in the U.S.
>
> Almost. As others have pointed out, there is the silly Twin Books
> decision in the 9th circuit. Is a work published overseas in 1922
> but subsequently published in the U.S. (e.g. Joyce's "Ulysses")
> p.d. in the 9th circuit? My point is: even if Twin Books keeps
> Ulysses under copyright in the 9th circuit, I don't think it could
> reach to any work published before July 1st, 1909.

I don't think that Twin Books affects the copyright status of a work like Joyce's Ulysses, which was first published abroad in English and so fell under the manufacturing requirements of the 1909 Act, whereas the German-language Bambi did not. That is, I read Twin Books narrowly (and, I think, rightly), to apply to the fact situation of a foreign-language work published abroad without a copyright notice. Since the work lacked notice, which was required under the 1909 Act for works published in the States, the copyright of the German Bambi was challenged as non-existent in the States. But the court held that our notice requirement could not affect a work published in a Berne country that did not require affixation of notice for copyright. The court further suggested that in the three or so years between the German and American publications of Bambi, the American copyright was not destroyed but sort of "in suspension." Therefore, some people think that this "in suspension" principle might extend to works like Ulysses that were victimized by the manufacturing requirements (a set of statutory requirements wholly different from notice affixation).

I don't think that Twin Books reaches to such works on any reading of the 1909 Act and the cases decided under the manufacturing requirements. Moreover, Congress recently provided a remedy for such works as Ulysses in the restoration provisions of the Uruguay Round Agreements Act, codified at section 104A of the 1976 Act. Although Ulysses benefited from only two years of formal protection under the restoration terms -- Jan. 1, 1996 (effective date of restoration) to Jan. 1, 1998 (natural expiration for the 1922 Ulysses' restored copyright -- it still had its remedy. I don't think a court should try to add to that remedy, Twin Books or not.

Robert Spoo
Executive Editor, Yale Law Journal
Editor-in-Chief, James Joyce Quarterly
<robert.spoo[_at_]yale.edu> Received on Wed Apr 14 1999 - 18:41:49 GMT