A Belated Gift - U.S. Copyright and the Public Domain

 

 

For 20 years, many copyright guidelines for students and researchers had a boilerplate statement that never needed to be updated: Materials published in the United States before January 1, 1923, are in the public domain.

For 20 years, many copyright guidelines for students and researchers had a boilerplate statement that never needed to be updated: Materials published in the United States before January 1, 1923, are in the public domain. On January 1, 2019, that benchmark shifts forward, with materials published in 1923 entering the public domain, although several things could have pulled works published in 1923 into the public domain before that day—publication without a valid copyright notice; failure to renew; the creator having explicitly designated it to be so. Public domain works are free to be reproduced, reused, and revitalized without infringing upon any copyright. Though a non-physical realm, the public domain offers very tangible benefits in terms of cultural exchange, creative activity, and intellectual rediscovery.

copyright stamps

Compilation of copyright registration notices from publications in the collection. Printed notices like these were required for a valid copyright until 1989.

This exhibit is designed to highlight both the creative contributions Arkansans made in 1923—contributions now fully within the public domain—as well as the continued policy development of copyright in the United States, as viewed through the political papers and constituent correspondence of its congressmen and through the correspondence of authors impacted by this decision-making.

But why should we care? Because the public domain is the basis for our art, our science, and our self-understanding. It is the raw material from which we make new inventions and create new cultural works.

James Boyle, The Public Domain: Enclosing the Commons of the Mind. Yale UP, 2008, page 39

Public Domain and Copyright in the United States

Copyright was enshrined in the U.S. Constitution, in Article 1, Section 8, Clause 8, now known as the "Copyright Clause." Shortly thereafter, the U.S. Congress passed its first copyright law, the Copyright Act of 1790, which claimed to be "An Act for the encouragement of learning" ("Copyright Act of 1790." (1790) https://www.copyright.gov/history/1790act.pdf). The intent of copyright—in the United States, and in other countries whose models it followed, like Great Britain—was less about learning, however, and more about providing an incentive to create and innovate. Copyright policy has continued to evolve, both through legislation and judicial rulings, although not always keeping pace with the technologies and publishing methods of the creators it seeks to serve. Increasingly, in the 21st century, there have been criticisms that it has gone too far, protecting corporate interests at the expense of the public domain. In 1790, the maximum term of a copyright was 28 years; today it is 70 years after an author's death—in the case of a precocious and long-lived creator, then, it could conceivably stretch more than 150 years. In 19th and early 20th-century America, creators were required to actively register and renew their copyright; today, copyright is automatically vested at the time of publication, and renewal is similarly automatic. The public domain, once the default, has become something to which creators must opt-in, should they wish their works to enter it during their lifetimes. Some do, particularly by using a CC-0 license.

A brief chronology of copyright development in the U.S.

1789: United States Constitution becomes the governing document for the country. Article 1, Section 8, Clause 8, the "Copyright Clause," gives Congress authority "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

1790: The first U.S. federal copyright law, the Copyright Act of 1790, is passed

1831: Copyright Act of 1831 doubles initial copyright term, to 28 years, and extends protection to musical compositions

1865: Copyright Act of 1865 extends copyright protections to photographs

1891: International Copyright Act of 1891 extends some protections to foreign authors

1909: Copyright Act of 1909 doubles the renewal option, to 28 years

1955: U.S. becomes a party to the Universal Copyright Convention (UCC)

1978: Copyright Act of 1976 takes effect, codifying "fair use" provisions established by Folsom v. Marsh (1841), (somewhat) streamlining copyright length determinations, and removing registration requirements

1988: Berne Convention Implementation Act of 1988 brings the U.S. into (minimal) compliance with the international Berne Convention

1992: Copyright Renewal Act of 1992 makes renewal automatic

1998: Sonny Bono Copyright Term Extension Act of 1998 adds 20 years to the standard copyright term

1998: Digital Millennium Copyright Act addresses issues from digital rights management to World Intellectual Property Organization (WIPO) treaties to vessel hull design

woodcut

Woodcut illustration by Paul Honoré, created for Charles J. Finger's The Highwaymen (1923). Typically, book illustrations are created as work-for-hire, with copyright held by the publisher; Honoré's 1923 illustrations entered the public domain on Jan. 1, 2019.

dixie quartet

Autographed cover of Harrison Howe's "How I Love You, My Arkansas." Despite the cover text, the composition was never officially Arkansas' state song (in 1923, that honor was held by Eva Ware Barnett's "Arkansas"). While published compositions like this one were covered by federal copyright law at the time, sound recordings were not covered by federal copyright law until 1972.

Selected Resource List

Boyle, James. The Public Domain: Enclosing the Commons of the Mind. Yale UP, 2008.

Hirtle, Peter B. "Copyright Term and the Public Domain in the United States." Chart. Cornell University Library Copyright Information Center. 6 Nov. 2018. https://copyright.cornell.edu/publicdomain

Lange, David. "Recognizing the Public Domain." Law and Contemporary Problems, 44.1 (1981): 147-178. https://scholarship.law.duke.edu/faculty_scholarship/824/

Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2001.

"Library-Related Principles for the International Development Agenda of the World Intellectual Property Organization." Library Copyright Alliance. 26 Jan. 2005. https://www.librarycopyrightalliance.org/principles

"Public Domain Day 2019." Center for the Study of the Public Domain, Duke Law School. https://law.duke.edu/cspd/publicdomainday/2019/

University of Arkansas Libraries. "Copyright and Fair Use: The Basics." University Libraries Research Guides. https://uark.libguides.com/Copyright/

U.S. Copyright Office. "Frequently Asked Questions about Copyright." https://www.copyright.gov/help/faq/

Project and Technical Notes

The University Libraries project team was composed of Lori Birrell, Head of Special Collections; Katrina Windon, Collections Management and Processing Unit Head; Deborah E. Kulczak, Head of Technical Services and Database Maintenance; Chelsea Hoover, Music, and Media Cataloging Assistant; and Martha Anderson, Head of the Digital Services Unit.

Digital Services personnel, including the Digital Services Coordinator, Lee A. Holt, Samuel Collins, Dexter Fairweather, Laine McGinty, Wendy McLean, Cassidy McManus, Hannah Mills, Alejandra Rubio, Hanna Williams, and Shelby Osbourn, digitized the images. The Digital Services team created the initial scans by utilizing the Atiz Book Drive Mark 2 scanner and the SMA Versascan 3650 scanner. The image optimization was performed using Adobe Photoshop and Adobe Acrobat; CONTENTdm digital asset management software from OCLC was used to create metadata, implementing Dublin Core standards, Library of Congress Name Authorities, the Art and Architectural Thesaurus, and the University of Arkansas Libraries CONTENTdm Cookbook. Optical character recognition (OCR) was added using ABBYY FineReader; transcripts were created and encoded using Notepad++.

Dylan Hurd and Beth Juhl from Web Services contributed to the webpage design. The digital exhibit was completed January 1, 2019.

Project Citation

"A Belated Gift U.S. Copyright and the Public Domain." Special Collections, University of Arkansas Libraries, Fayetteville, January 1, 2019. http://digitalcollections.uark.edu/cdm/landingpage/collection/p17212coll6