8 Duration of copyright

In this reading, we delve into how copyright duration is decided and its implications for works in the Public Domain. The evolution of US copyright laws reflects changing perspectives on balancing protection and accessibility of creative works. Discussions arise on whether copyright terms adequately serve both creators and the public.

Duration of Copyright

For any works published today, the duration of copyright for new works is life of the author plus 70 years. For works of corporate authorship, the duration is either 95 years after the date of publication or 120 years after the date of creation, whichever comes first. Works for which copyright has expired enter the Public Domain, meaning no copyright law applies, and the work can be used with no restrictions. As of 2023, this is true for works published before 1928 and unpublished works whose authors died before 1953.

The Intellectual Property Clause did not define the duration of “limited time.” And since the adoption of the constitution, congress has worked within the wording of that definition to extend the duration of copyright protection multiple times.

Expansion of U.S. copyright law (assuming authors create their works 35 years before their death). Image Credit: Tom Bell, CC BY-SA 3.0.

In the United States, the first act to define a length was the Copyright Act of 1790. That legislation required registration of copyright, and defined the length of protection as fourteen years, with an additional term of fourteen possible if the copyright owners so wished, provided they re-registered the work in time. The Copyright Act of 1831 extended the initial term to 28 years with option to renew for another 14, while extending copyright to include printed musical compositions (performances would be added in 1897). The Copyright Act of 1909 extended the renewal period to 28 years, while also extending copyright protection to all works of authorship. The legislation includes language addressing the balance between public interest and creator rights:

“The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests” (H.R. Rep. No. 2222, 60th Cong., 2nd Sess., p. 7 [1909]).

The next major revision did not come until 1976. This legislation, anticipating US adherence to the Berne Convention, extended the term of protection to the life of the author plus 50 years (we’ll go into this more in Global Perspectives). The exclusive rights to:

• reproduce (copy) the work;
• create derivative works,
• distribute copies,
• perform the work publicly,
• and display the work publicly.

For a fuller description of this legislation, see, “Copyright Theory and History,” by Larry Wayte.

The most recent extension came in 1998 with the Copyright Term Extension Act. The 1998 Copyright Term Extension Act (Sonny Bono Act) introduced several case-specific terms, in addition to further delaying new works entering the Public Domain. Now the duration of U.S. copyright protection lasts for the life of the author plus an additional 70 years after their death. For a full list of various terms, see this guide from Cornell University Libraries. We’ll cover the Public Domain in more detail later in this course, but for now, we’ll focus on the fact that the terms of copyright have not always been as they are now. The extension of these terms is at the heart of a debate over the purpose of copyright. As we will see later, also the inciting incident for the creation of the Creative Commons, which makes Open Educational Resources as we know them possible.

For a more profound look at the timeline of copyright law, see:

• Copyright Timeline: A History of Copyright in the United States, from the Association of Research Libraries.
• Insert: World Copyright Term Length Author: Balfour Smith, Canuckguy, Badseed, Martsniez — Original image by Balfour Smith at Duke University. CC BY 3.0.