By Kevin Smith

The first of January, as many of you know, is the day on which works whose copyright term expired the previous year officially rise into the public domain. For many years now, however, no published works have entered the PD because of the way the 1976 Copyright Act restructured the term of copyright protection. 2018 was the first year in decades that the term of protection for some works – those published in 1923 – began to expire, so on January 1, 2019, many such published works will, finally, become public property. Lots of research libraries will celebrate by making digital versions of these newly PD works available to all, and the Association of Research Libraries plans a portal page, so folks can find all these newly freed works.

I want to take a moment to try to explain the complicated math that brought us to this situation, and to spell out what is, and is not, so important about this New Year’s Day.

Published works that were still protected by copyright on Jan.1, 1978, when the “new” copyright act of 1976 went into effect, received a 95-year term of protection from the date of first publication. For works that were in their first term of copyright when the law took effect, this was styled (in section 304(a)) as a renewal for a term of 67 years, so that 28 years from when the copyright was originally secured plus the 67 years renewal term equaled 95 years. If a work was in a second, renewed term on Jan 1, 1978, section 304(b) simply altered the full term of protection to 95 years from date of first publication (or, as the law phrases it, when “copyright was first secured”).

So what is special about 1923? Prior to the 1976 act, copyright lasted for 28 years with a potential renewal term of another 28 years. This adds up, of course, to 56 years. Thus, works published in 1923 would be the first batch of copyrighted work that would receive this 95-year term, because they would be the oldest works still in protection when the new act took effect (1923 plus 56 years being equal to 1978). A work published in 1922 would be entering the public domain just as the new act took effect, and those works stayed in the public domain. But those published a year later were still protected in 1978, and they got the benefit of this new, extended term, which ultimately resulted in 37 more years of protection than an author publishing her work in 1923 could have expected. Therefore, everything published from 1923 until 1977 enjoyed an extension, first to 75 years, then, thanks to the Sonny Bono Copyright Term Extension Act, 95 years. Since 2018 is 95 years after 1923, it is those works published in 1923 whose terms expired during 2018, so they officially rise into the public domain on Jan. 1, 2019.

All this math does not mean, however, that everything published in 1923 has been protected up until now. Notice that, in the description above, we distinguish between those works in their first (28-year) term of protection and those in their second term. That is because, under the older law, a book, photograph, song or whatever, had to be renewed in order to continue to have protection past that first 28 years. Many works were not renewed, and the 1976 act only applies the extended 95-year term to those older works that were in their second term of protection when it took effect. So if a work was not renewed, and its copyright had already lapsed, the extended term did not apply. A basic principle is that the 1976 copyright law did not take anything out of the public domain that had already risen into it (although a later amendment did exactly that for certain works that were originally published in other countries).

What is really happening then, is that some 1923 works – those whose copyright term was renewed after 28 years (in 1951) – really do become public domain for the first time. But for a great many works, which were already PD due to a failure to renew, what really happens this week is that we gain certainty about their status. Research suggests that a sizable percentage of works for which renewal was necessary were not, in fact, renewed; estimates range from 45% to 80%. So many of the works we will be celebrating were certainly already public domain; after January 1 we just have certainty about that fact. Finding out if a work was renewed is not easy, given the state of the records. The HathiTrust’s Copyright review program has been working hard at this task for a decade, and they have been able to open over 300,000 works. But it is painstaking, labor-intensive work that mostly establishes a high probability that a work is PD. On Public Domain day, however, we get certainty, which is the real cause for celebration.

Let me illustrate this situation by considering one of the works that the KU Libraries plan to digitize and make openly accessible in celebration of Public Domain Day, 2019. Seventeen Nights with the Irish Story Tellers, by Edmund Murphy, is an interesting collection of poems that is part of our Irish literature collection, one of the real strengths of the Spencer Research Library at KU. It was published in Baltimore in 1923, and OCLC lists holdings for only 15 libraries. It is apparently not held by the HathiTrust, likely because no libraries whose holdings Google scanned owned a copy. But my guess is that it is already in the public domain and has been since the early 1950s. And there is no record of any renewal of its copyright in the database of renewal records maintained by the library at Stanford University. That database only holds renewal records for books, and it contains no indication that Seventeen Nights ever received a second term of protection. So the chances are good that this work, like so many others, has been in the public domain for many years.

There are a great many works published between 1923 and 1963 that simply exist in a state of limbo, probably in the public domain but not (yet) subject to the effort needed to determine whether there has ever been a renewal of the copyright. On Public Domain Day, 2019, we should certainly be delighted by the “new” 1923 works, such as Robert Frost’s Stopping by Woods on a Snowy Evening, that will become PD for the first time. But we also need to recall that many published works from the mid-20th century are already in the public domain. If we want to make the effort to do the needed research, there is lots of opportunity to free up some of these works without waiting for another January 1.

Happy Public Domain Day to all!

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

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