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Friday, March 23, 2012

Copyright Reinstatement Deemed Legal for Certain Works --- What Happens to Public Domain?

Supreme Court -
 "Right or Wrong, That's
My Ruling!"  
First, the definition of public domain RE literary or artistic works:

Public domain is the status of a literary work or an invention whose copyright or patent has expired or that never had such protection --- In other words, all initially accrued rights to the creator have expired. (I often wondered why they should ever expire ... but, I can see the other side to this, mainly for educational purposes).  

Many professions, researchers and teaching professionals (think libraries) rely on free access to works in the public domain to carry out their missions. So, what happens if a great old masterpiece has its copyright reinstated ? What is the fallout ?
You know what I think the supreme court did here ? The thing they always do the best --- create a clusterfuck !
Meaghan Hemmings Kent, writing on Lexology.com for Venable LLP has this insight:  
On January 18, 2012, the Supreme Court confirmed 6-2 that certain works that had entered the public domain could have their copyright restored. Golan v. Holder, Case No. 10-545. The works affected are estimated to number in the millions and could include films by Alfred Hitchcock, such as The Birds; books by Virginia Woolf, such as Mrs. Dalloway; symphonies by Prokofiev, such as Peter and the Wolf; and paintings by Picasso, such as Guernica.

The decision will not only affect the copyright owners, but also anyone who relies on public domain works, particularly those creating derivative works, reprint publishers, musicians, orchestra conductors, teachers and film archivists.

The case considered the constitutionality of a portion of the Copyright Act, 17 U.S.C. § 104A, that was enacted in 1994 by Congress in order to comply with the international accord, the Berne Convention. Section 104A allows for certain works that had previously entered the public domain to have their copyright reinstated. The types of works are non-U.S. works that were protected in their country of origin, but were not protected in the U.S. for the following three reasons:

1.They were exempt from copyright protection at the time of publication (i.e., Soviet-created works).

2.They were sound recordings fixed before 1972 (the U.S. did not protect sound recordings prior to 1972).

3.The author did not comply with U.S. statutory formalities of copyright under the old 1909 Copyright Act (such as the old requirement of copyright notice).

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