14 Public Domain in Context: Copyright Extension Acts

Public Domain and the Duration of Copyright

Article 1, Section 8, Clause 8 of the U.S. Constitution states that “to promote the progress of science and useful arts” Congress can secure “for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (emphasis added). The duration of the term of copyright protection has varied over the years. As of the writing of this chapter (2021), U.S. copyright law is governed by the Copyright Act of 1976, as amended. Originally under the Copyright Act of 1976, “copyright protection generally lasted from a work’s creation until 50 years after the author’s death” (Eldred v. Ashcroft 2003, 186). This term was established to bring the term of protection in the U.S. in line with the international standard of ‘life plus 50 years’ adopted under the Berne Convention for the Protection of Literary and Artistic Works.

In 1998 Congress passed the Copyright Term Extension Act (CTEA), which is also sometimes referred to as the Sonny Bono Copyright Term Extension Act. The CETA extended the duration of copyright by 20 years, resulting in protectable works receiving the following terms:

• Works created by a single author are protected or the “life of the author and 70 years after the author’s death” (17 U.S.C. § 302[a]).
• “In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death” (17 U.S.C. § 302[b]).
• “In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first” (17 U.S.C. § 302[c]).

Justice Ginsburg, in writing the opinion of the Court for Eldred v. Ashcroft (joined by Justices Rehnquist, O’Connor, Scalia, Kennedy, Souter, and Thomas, Justices Stevens and Breyer dissented), noted that such extensions are not unusual as “Congress provided for application of the enlarged terms to existing and future copyrights alike” in revisions made to U.S. copyright law in 1831, 1909, and 1976 (Eldred v. Ashcroft 2003, 186). In Eldred v. Ashcroft the petitioners did “not challenge the CTEA’s ‘life-plus-70-years’ timespan itself,” rather they argued that “Congress went awry not regarding [expanding the term for] newly created works, but in enlarging the term for published works with existing copyrights” (186). They felt that extending the term of protection for works with existing copyrights violated “both the Copyright Clause’s ‘limited Times’ prescription and the First Amendment’s free speech guarantee” (186). The SCOTUS disagreed, stating that “at the time of the framing, ‘limited’ meant what it means today: confined within certain bounds, restrained, or circumscribed. Thus understood, a timespan [of life plus 70 years] is appropriately ‘limited’” (187). As such, additional extensions of the terms of protection granted to copyrightable works could be granted by Congress in the future.

The term of protection granted to works created before January 1, 1978, depends on the publication status of the work (published or unpublished) and the rights holder’s compliance with formalities found in the law during this time. Readers seeking to determine the term of copyright protection for a work should consult the Copyright Term and the Public Domain in the United States charts created by Peter Hirtle. The resource, Is it in the Public Domain created by the Samuelson Law, Technology and Public Policy Clinic at the University of California, Berkeley, School of Law. It is another excellent resource readers can use to determine the copyright status of works created prior to January. 1, 1978.

This module  makes use of material adapted from “Copyright Basics” in Legal Issues in Libraries and Archives, by Carla Myers. CC BY 4.0.