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Are facsimile copies of public domain works still under copyright?

No. Facsimile copies are simply reproductions that do not create a new copyright in the work. So, a microform copy of a public domain work is also in the public domain. If, however, the facsimile copy has new material that was added, such as a new preface or an index, that new material may be protected by copyright. The material that is in the public domain work remains in the public domain. Often the publishers of these facsimile copies of works produce a collection of several titles and claim copyright in the collection. The individual titles may be reproduced, but not the entire collection.

When someone produces a genealogical transcription, is that transcription copyrightable?

A genealogical transcription may be defined as a readable version of a document in which the original handwriting is difficult to read. Any copyright would exist in the original document and would belong, at least initially, to the original author. In all likelihood, the work was not published but remained in manuscript format or was a handwritten document. So, the work was protected by common law copyright if it was created before January 1, 1978. This means that the work was ineligible for federal copyright protection because it was not published, but it also means that it never entered the public domain. When the Copyright Act of 1976 was enacted, Congress set a date at which unpublished works would enter the public domain. Works that existed on January 1, 1978, but remained unpublished through the end of 2002 entered the public domain at the end of 2002, or life of the author plus 70 years, whichever is greater. Works that were published between 1978 and the end of 2002 do not enter the public domain until the end of 2047, or life of the author plus 70 years, whichever is greater.

Even though the transcription is very useful, it does not create a new copyright in the work. On the other hand, a compilation of transcriptions, as long as it is not a total universe of documents (such as all of the letters of a particular writer), might qualify as a copyright-able compilation. The compilation itself has to be original, and sufficient creativity must be found from among the following factors: the selection of items, the indexing, the organization, or value added to the material.

Is it true that nothing will enter the public domain until the year 2019? Why? Who initiated and pushed for such change in the copyright law?

It is unfortunately true. The Sonny Bono Copyright Term Extension Act was signed into law on October 27, 1998, as an amendment to the Copyright Act of 1976. It basically extended the term of copyright for works published in the United States from life of the author plus 50 years to life plus 70 years, and it applied retroactively to works still under copyright. Because of the retroactivity provision, this means that only works published before 1923 are clearly in the public domain; works published from 1923 through 1963 may be in the public domain if they were not renewed for copyright at the expiration of the first 28-year term. If they were renewed, these works received an additional 67 years after the initial 28 years of protection. Therefore, it will be January 1, 2019, before anything else goes into the public domain. Works published from 1964 through 1977 were given a total of 95 years of protection by the same amendment, and the need to renew a copyright was eliminated.

It was predominantly the movie studios that pushed for term extension in this country. The European Union had gone to life plus 70 years a couple of years earlier, and the argument was made that U.S. law should be harmonized with that of the EU. Book publishers were actually not in favor of the extension, but did not formally object. The motion picture industry did most of the lobbying and funding of the effort to enact term extension.

A librarian found my 1998 chart, "When U.S. Works Pass into the Public Domain" (see Appendix; also available at www. unc.edu/~unclng/public-d.htm) reproduced on a website and asks the following: The chart states that works published before 1923 are now in the public domain. (1) Does it mean that in 2008 one can count that date as 1933? (2) If something is published before this date and then the copyright is renewed, does the renewal apply only to publications since the copyright renewal? For example, a U.S. publication dated 1906: is it in the public domain even if later publications have a renewed copyright notice in them?

(1) No, the year does not move as it did in the past; it is still 1923 for works first published in the United States. It will be 2019 before the works from 1923 enter the public domain. If the copyright term remains life plus 70 years, then beginning in 2019 works will enter the public domain year by year as in the past.

(2) The 1906 work is in the public domain. Even if the 1906 work were renewed for copyright, it would have received only an additional 28 years, so the first term would have expired in 1934. The renewal of 28 years would have expired in 1962, so it is now in the public domain. If new editions of the original 1906 work are published, only the new material gets a new copyright date, and the term for that new material is measured from the publication date of the new edition, if there is no personal author or, if there is a personal author, life plus 70 years.

A library wants to distribute the public domain chart mentioned in Q8 to users on its campus. May the library do so? The library would like to change "published before 1923" to "published more than 75 years ago." This will obviate the need to change the chart every year.

I always grant permission to use my public domain chart (see Appendix; also available at unc.edu/~unclng/public-d.htm) if the requester does two things: (1) uses my name with it and (2) includes the website address so that the user will have a source for any future changes to the statute. But I do not permit changes to the chart. The "published more than 75 years ago" was correct until October 27, 1998, when the Sonny Bono Term Extension Act was signed into law. Now, that is not correct. It will be 2019 before anything else goes into the public domain. So, the "published before 1923" will remain in effect until 2019 when the chart can begin to say "published more than 95 years ago."

A university faculty member is publishing a textbook. She is planning to use samples of folktales, poetry, and the like and is in the process of getting permissions. Should she be unsuccessful in obtaining permission, she wants to substitute works that are in the public domain. The library has located some examples of fairy tales and poetry that were published well before 1923, but the anthologies in which they appear were published later, some as far back as the 1940s but many in more recent compilations. Is the date of the anthology the relevant date?

No. The critical date is the date of first publication of the poem or tale. Republication in a new anthology does not change the underlying copyright date for the individual piece. Anthologies are copyrighted, but the copyright is in the compilation and not in each individual piece. Additionally, the anthology copyright covers any new materials added such as a new preface, editorial comments and the like. Note that some anthologies include new translations of folk tales from original languages, and the translation may be copyrighted as a derivative work.

 
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