DURATION OF COPYRIGHT

I. HISTORY OF DURATION OF COPYRIGHT IN THE UNITED STATES

The origin of the provisions concerning duration of copyright in the various copyright statutes in the United States is the Statute of Anne,1 enacted in England in 1709. That statute granted to the author and his assigns an original term of 14 years from the date of publication plus a second term of 14 years should the author be living at the expiration of the first term. Of statutes enacted between 1783 and 1786 by 12 of the Original 13 States,2 6 followed the pattern of the Statute of Anne as did the first Federal statute enacted by Congress in 1790.

3

Thereafter the English and United States laws took divergent courses. The United States held to the original pattern, with amendments to be noted below, while the English law was changed, in 1814, to a term of 28 years plus the remainder of the author's natural life should he be living at the expiration of the first term, in 1842 to 42 years or the life of the author plus 7 years whichever should be longer, and in 1911 to the life of the author plus 50 years.

The English law thus eliminated the problems which arise in connection with a system which incorporates two or more terms. These problems are still with us in the United States and will be discussed later to the extent that they are a part of the problem of duration. For the present we will discuss duration without regard to the renewal problem.

Three States, Connecticut, Massachusetts, and Maryland enacted copyright laws in 1783 prior to any concerted action on the part of the States on this subject. All stated the purpose of the legislation to be the encouragement of authors and the benefit to the public. Massachusetts provided for a single term of 21 years from the date of publication, while the other two followed the Statute of Anne and provided for a first term of 14 years from the date of publication followed by a second term of 14 years should the author be living at the expiration of the first term.8

7

In 1783 the Continental Congress recommended to the States that legislation be adopted for the protection of authors or publishers." A term of not less than 14 years from the date of publication, plus a second term of 14 years should the author be living at the expiration of the first term, was suggested. Nine of the remaining ten States

18 Anne, c. 19, 1709.

2 Candler, Colonial Records of Georgia (1911), Vol. XIX, pp. 485-89; Green, Maryland Laws (1783), ch. 34; Collins, Acts of the General Assembly of New Jersey (1783), ch. 21; Laws of New York (1786), ch. 54: Bradford, Laws of Pennsylvania (1748), ch. 125; Green, Acts and Laws of Connecticut (1783), pp. 617-19.

* 1 Stat. 124.

454 Geo. III, ch. 156.

5 & 6 Vict., ch. 45.

1 & 2 Geo. V, ch. 34.

7 Edes, Acts and Laws of Massachusetts (1783), p. 236.

Supra, note 2.

Journals of the Continental Congress, 1774-89, (1922), Vol. XXIV, pp. 326-7.

subsequently adopted copyright legislation between the years 1783 and 1786. North and South Carolina adopted a single term of 14 years,10 New Hampshire a single term of 20 years," Rhode Island and Virginia a single term of 21 years, 12 and New Jersey, Pennsylvania, Georgia and New York 13 followed the Statute of Anne,1 and the recommendation of the Continental Congress,15 adopting a first term of 14 years, to be followed by a second term of 14 years should the author be living at the expiration of the first term.

16

In 1790, under the power granted by Article I, Section 8 of the Constitution, Congress enacted the first Federal copyright statute, and copyright legislation in the United States was thereafter an undertaking of the Federal government rather than of the individual States. The constitutional provision grants Congress the power "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." The provision of the first Federal statute of 1790 regarding duration followed the Statute of Anne and the legislation in six of the States, in providing "That *** the author *** shall have the sole right and liberty of printing, reprinting, publishing and vending *** for the term of 14 years * * * And if, at the expiration of said term, the author *** be living *** the same exclusive right shall be continued to him * * * for the further term of 14 years ***" However, recording of the title of the work in the office of the clerk of the District Court prior to publication was required to secure copyright, and the term was measured from the date of recording the title, rather than from the date of publication as in the Statute of Anne and earlier State legislation.

In 1831 the length of the original term was extended to 28 years while the second term of 14 years was retained." The stated purpose of this amendment was "to enlarge the period for the enjoyment of copyright, and thereby to place authors in this country more nearly upon an equality with authors of other countries." 18

In 1909 the present statute was enacted,19 Section 23 (now 24) of that statute extends the second term of copyright to 28 years, and it also returns to the date of publication, rather than the recording of the title, as the starting point. Under Section 9 (now 10) copyright is secured by publication of the work with the required notice, and registration is a subsequent act. Section 23 (now 24) provides: "The copyright *** shall endure for 28 years from the date of first publication*** and *** the author shall be entitled to a renewal *** of the copyright *** for a further term of twenty-eight years.'

20

10 Laws of North Carolina (1785), ch. 24; Miller, South Carolina Acts, Ordinances and Resolves (1784), pp. 49-51.

11 Melcher, Laws of New Hampshire (1789), pp. 161-62.

12 Carter, Rhode Island Acts and Resolves (1783), pp. 6–7; Dunlap & Hayes, Virginia Acts (1785), pp. 8-9.

13 Supra, note 2.

14 Supra, note 1.

15 Supra, note 9.

16 Supra, note 3.

17 4 Stat. 436.

18 Report of the Committee on the Judiciary of the House of Representatives, 7 Register of Debates, appendix CXIX.

19 35 Stat. 1075, Title 17, U.S.C.

20 Sec. 23 contains also detailed provisions as to who shall be entitled to secure the second term of 28 years.

Under Section 11 (now 12) copyright in certain classes of unpublished works may be secured by deposit and registration in the Copyright Office. For other classes of unpublished works not mentioned in that section statutory copyright is not available before publication. There is no specific provision in the present law as to the term of copyright for those unpublished works for which Federal statutory copyright is available. It has been held, however, that the term is 28 years from the date of deposit in the Copyright Office, plus a 28 year renewal, the second term to be secured in the same manner as in the case of published works.21

II. SUMMARY OF PROVISIONS CONCERNING DURATION IN THE LAWS OF OTHER COUNTRIES AND IN INTERNATIONAL CONVENTIONS

A. NATIONAL LAWS

No country in the world has adopted provisions on duration precisely like those found in the United States law, and, with the exception of the Philippine Islands, none has adopted anything similar.

In the Philippine Islands the term is 30 years measured from the date of registration, plus a second term of 30 years.22 The second term is granted to the proprietor, his assigns, or heirs upon filing an application during the last year of the first term.

In almost all countries of the world which accord copyright protection the term endures, in the case of works authored by natural persons who are identified, for the life of the author plus a stated number of years after his death. The term for works of authors who are not natural persons, in the laws which explicitly cover such situations, and for anonymous and pseudonymous works is usually a stated number of years from the date the work is published or is made public in some other manner as by public performance. In many laws special provisions, which differ from the general provisions on duration, are included for some particular classes of works.

In more than half of the countries in which copyright protection is available the term for works by identified persons is the life of the author plus 50 years. In this group are Australia, Austria, Belgium, Canada, Chile, Costa Rica, Czechoslovakia, Denmark, Ecuador, Finland, France, Germany, Great Britain, Greece, Guatemala, Hungary, Iceland, Eire, Italy, Lebanon, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Paraguay, Switzerland, Syria, Turkey, Union of South Africa, and the Vatican.

Some countries have adopted a longer term: perpetuity in Nicaragua and Portugal; life plus 80 years in Colombia, Cuba, Panama and Spain; and life plus 60 years in Brazil.

Other countries have adopted a shorter term: life plus 40 years in Uruguay; life plus 30 years in Argentina, Bolivia, China, Dominican Republic, Japan, Rumania, Sweden, Thailand, and Venezuela; life plus 25 years in El Salvador; life plus 20 years in Mexico, Peru and Poland; and life plus 15 years in the U.S.S.Ř.

21 Marx v. United States, 96 F. 2d 204 (9th Cir. 1938).

22 UNESCO, Copyright Laws and Treaties of the World, UNESCO and Bureau of National Affairs, Inc. (1956). This compilation is the source of all the information herein contained on the laws of the individual countries other than the United States, and on the provisions of the three international treaties discussed below.

In Bulgaria, Haiti and Yugoslavia the term after the death of the author is determined by the life of the surviving spouse and a term to the children for a period of years (20 years in Haiti) or until they reach a certain age (their majority in Bulgaria, the age of 25 in Yugoslavia).

It should be noted that in some countries the term after death is qualified in whole or in part. Without attempting to enumerate these provisions some examples are: a compulsory license arrangement during the last 25 years of the 50 year term in Great Britain under the Act of 1911 (eliminated in the Act of 1956); provisions in Spain, Colombia, Cuba and Panama that only the first 25 year portion of the 80 year term may go to assigns, the remaining 55 years being reserved for the author's heirs; and provisions in Argentina and Colombia that if there are neither heirs nor assigns the publisher will receive a term, fifteen years in Argentina, twenty years in Colombia.

Almost all countries which have adopted a term of life plus a term of years measure the term after death, in the case of joint authors, from the death of the survivor; but Australia, Ireland, New Zealand and the Union of South Africa protect the work for 50 years after the death of the first to die or for the life of the survivor, whichever results in the longer term.

In countries which have legislated generally on duration for works which are not authored by natural persons, the term is usually the same number of years which the particular country has adopted following the author's death, but the term is measured from the date the work is published or otherwise made public. For example, in the Netherlands the term is 50 years from the date of publication for the works of public institutions, associations, foundations or partnerships. The same provision is usually applied to anonymous and pseudonymous works. Most of the countries which are members of the Berne Union have not adopted separate provisions for works of private organizations or employers for hire because they do not recognize any but individual authorship.

Many countries have special provisions concerning the duration of protection for photographs,23 some for motion pictures,24 and a few for sound recordings. 25 Several countries have a special term of protection for translations 26 or for translation rights.27

In the case of photographs some of these countries measure the term from the date the photograph is made 28 and some from the date of publication.29 The terms range in the case of photographs from 5 years in Bulgaria, Russia, and Yugoslavia to 50 years in the Netherlands and most of the English speaking countries of the British Commonwealth.

23 Argentina, Austria, Bulgaria, China, Czechoslovakia, Denmark, Dominican Republic, Egypt, Finland, Germany, Hungary, Italy, Japan, Norway, Paraguay, Poland, Sweden, Turkey, U.S.S.R., Venezuela and Yugoslavia.

24 Austria, Bulgaria, China, Czechoslovakia, Dominican Republic, Egypt, Germany, Poland and Turkey.

25 Austria and Thailand.

26 Burma, China, Ecuador, and Spain.

Egypt, India, Japan, Mexico, and Turkey.

28 Austria, Italy and Japan.

20 Argentina, Bulgaria, China, Czechoslovakia, Dominican Republic, Finland, Germany, Hungary, Norway, Paraguay, Poland, Sweden, Turkey, the U.S.S.R. and Yugoslavia.