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Class 10Copyright, Winter, 2010
DurationRandal C. PickerLeffmann Professor of Commercial Law
The Law School
The University of Chicago
773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.
April 20, 2023 Copyright © 2005-10 Randal C. Picker 2
Current Statute: Duration
302(a) In General. Copyright in a work created on or after
January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.
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Duration under the 1831 Act
Key Features 28 years duration from the time of recording
of the copyright as provided in the act 14 year renewal term possible
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A Study in Scarlet
Do the Numbers American Publication: 1890 Assume appropriate initial copyright, then
initial term 28 years Assume appropriate renewal for second 14
year term Should have entered the public domain in
say 1932
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Duration under the 1909 Act
Key Features Newly-Copyrighted Works
Initial 28-year term Ran from date of first publication Copyright itself could be forfeited if formalities
weren’t met Second renewal term of an additional 28-years
if mechanics of renewal were done properly
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Duration under the 1909 Act
Key Features Existing Works
For works still in copyright, 56-year term extended to them
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A Study in Scarlet
Do the Numbers American Publication: 1890 First 28-year term ends 1918, so in
copyright at passage of 1909 Act Then eligible for second 28-year term under
the 1909 Act Should have entered the public domain in
say 1946 (and presumably did)
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Extensions of Existing Copyrights under 1909 Act
Add More Years Congress passed a series of temporary
copyright extensions for existing works in anticipation of broader copyright legislation
Footnote 2 in Eldred sets for the nine temporary extensions leading into the 1976 legislation
Means works didn’t enter public domain
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Duration Under the 1976 Act
Key Event Shift Point of creation triggers copyright, not
publication For New Works Jan 1, 1978 and forward
Life of the author + 50 years from the point of creation
[Note: changed to life + 70 years by CTEA]
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Duration Under the 1976 Act
What about works in existence before Jan 1, 1978? Three categories
Already in the public domain Not in the public domain and not in the
copyright system (e.g., created but unpublished)
Already in the copyright system
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Duration Under the 1976 Act
In the Public Domain? Stay in the Public Domain Sec. 103 of the 1976 Act: “This Act does not
provide copyright protection for any work that goes into the public domain before January 1, 1978.”
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Duration Under the 1976 Act
Sec. 303: Created but Unpublished Applies the new life + 50 from creation rule
to these works with the proviso that can’t expire before Dec 31, 2002 and if published before then won’t expire before Dec 31, 2007
[Note: 2007 date was changed to 2027 in CTEA]
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Duration Under the 1976 Act
Sec. 304: Already in the Copyright System Two further subcategories
Works in their first term• Get original 28 year term and can renew for second
term of 47 years (for a total copyright of 75 years) Works in their second term
• Second term extended so as to make total term 75 years.
[Note: amended in 1992 and 1998]
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The Devil’s Foot
Do the Numbers American Publication: 1911 Assume appropriate initial copyright, then
initial term 28 years Assume appropriate renewal for second 28
year term Should have entered the public domain in
say 1967
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The Devil’s Foot
But Didn’t Interim extension statutes would have
protected it Under 1976 Act, would have been in
second term and received new regime total of 75 years from publication
Should then enter public domain in say 1986 (and, presumably, did so)
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1909 Act Entry into the Public Domain
To Sum New works created under the 1909 act didn’t
enter the public domain 56 years in Temporary extensions carried those to the 1976
act That act generally moved those works to a 75
year term In 1984, 1909 act works start entering the public
domain
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Rolling Forward from 1984
Copyright Renewal Act of 1992 Changed rules regarding renewal to match
structure of the current statute 304(a)(1) provides for automatic renewal for
second term No longer required to file for second term of
renewal
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Rolling Forward from 1984
Copyright Renewal Act of 1992 Works don’t enter the public domain
through non-renewal 1992 – 28 = 1964
Works before 1964 could have failed to file for second term and if so would have entered the public domain
See G&G, 7th ed, p. 435
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Rolling Forward from 1984
Copyright Term Extension Act of 1998 Added twenty years to duration for works
still in copyright Applied on going forward basis and to
preexisting works
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Rolling Forward from 1984
Copyright Term Extension Act of 1998 1998 – 75 = 1923
75 year term in place prior to passage of CTEA would have expired for works published prior to 1923
See G&G, 7th ed, p. 435
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Shoscombe Old Place
Do the Numbers American Publication: Say 1928 Assume appropriate initial copyright, then initial
term 28 years Assume appropriate renewal for second 28 year
term 1928 + 56 = 1984 Still in copyright on Jan 1, 1978, effective date of
1976 Act
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Shoscombe Old Place
Do the Numbers American Publication: Say 1928 That means triggered revised 75 year
period 1928 + 75 = 2003 But still alive at time of CTEA, so another 20
years = 2023!
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Trace the Effect of the Extensions
If still in copyright on July 1, 1909 (effective date of 1909 Act) Got boost from 42 years to 56 years Something published immediately before
the 1909 Act, say in 1908, would have a 56 year duration: 1908 + 56 = 1964
1st temporary extension passed Sept 19, 1962
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Trace the Effect of the Extensions
If still in copyright on July 1, 1909 (effective date of 1909 Act) 1962 – 56 = 1906
Something published before say 1906 should have been out of copyright and so would not have been extended by the 1962 Act
Something after that would have been
April 20, 2023 Copyright © 2005-10 Randal C. Picker 35
Trace the Effect of the Extensions
If still in copyright on Jan 1, 1978 Got boost from 56 years to 75 years (an
additional 19 years) And remember, given temporary
extensions, everything published under 1909 Act was still alive
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Trace the Effect of the Extensions
If still in copyright on before effective date of CTEA (90 days after Oct 27, 1998) Got boost from 75 years to 95 years (an
additional 20 years) But intervening period without extensions
means that work published before 1923 (1998 – 75) had entered the public domain
April 20, 2023 Copyright © 2005-10 Randal C. Picker 37
Holmes and the Public Domain
Is Sherlock Holmes, the character, in the public domain?
Pannonia Farms, Inc. v. USA Cable, 2004 WL 1276842 (S.D.N.Y.,2004) “The holdings in Silverman are on point. Like
the Amos ‘n’ Andy characters, the Holmes and Watson characters have been delineated in over fifty stories that no longer possess copyright protection.”
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Holmes and the Public Domain
“Again, like Silverman, just as these many stories have passed into the public domain, so too have their delineated constituent elements, such as the Holmes and Watson characters that are the subject of this suit.”
April 20, 2023 Copyright © 2005-10 Randal C. Picker 39
Holmes and the Public Domain
“ Thus, at most, ‘[o]nly the increments of expression added by’ the Nine Stories, either to these two characters or any aspect of Sir Doyle's stories that are in the public domain and underlie plaintiff's works, are protected. Silverman, 870 F.2d at 50. Storylines, dialogue, characters and character traits newly introduced by the Nine Stories are examples of added contributions susceptible to copyright protection.”
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Screen Capture Slide
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[PG Home]
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[WW: 13.95]
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[WW: 12.95]
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[WW: 12.71]
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[WW: 9.99]
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[WW: 7.00]
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[WW: 5.95]
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[WW: 4.99]
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[WW: 3.95]
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[WW: 1.50]
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Constitution
The Congress shall have the Power . . . To promote the progress of science and the
useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
(Art. I, § 8, cl. 8)
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Duration
Starting Questions What is the right duration looking forward? What is the right way to structure duration? Under what circumstances, if any, should
we want Congress to extend duration for existing works?
Does Congress have the power to do that?
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One-Period Present Value
Numbers 10% interest rate From Today to Tomorrow
$1 today is worth $1.10 one year from now From Tomorrow to Today
$1.10 one year from now is worth $1 today
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One-Period Present Value
Formulas
FV PV 1r PV FV
1r
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Two-Period Present Value
Numbers From Today to Tomorrow to The Period
After Tomorrow $1 today—present value—is worth $1.10
one year from now, is worth 1.21 two years from now
From Two Years from Now to Today A future value of $1.21 two years from now
is worth $1 today
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Two-Period Present Value
Formulas
FV PV 1r1 1r2 PV
FV1r1 1r2
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Two-Period Stream
Question What is $1.10 one year from now + $1.21
two years from now worth today? We have done this already!
$1.10 one year from now is worth $1 today $1.21 two years from now is worth $1 today Together, they are worth $2 today
April 20, 2023 Copyright © 2005-10 Randal C. Picker 61
Two-Period Stream Again
Question What is $1 one year from now + $1 two
years from now worth today? Answer
$1/1.1 + $1/1.21 = 1.735
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N-Period Stream
Assumptions Stream will pay fixed amount C in every
period One-period interest rate r is same in every
period What is the formula that tells us the present
value of a stream of N periodic payments of C?
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N-Period Stream
Formula
PV C
r1
1
1 r N
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Forever Period Stream
Formula
r
CPV
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Do the Numbers
Assumptions C = $100 R = 10% (0.1)
Value Today of $100 a Year Forever $1000
Value Today of $100 a Year for Fifty-Five Years $994.71
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Do the Numbers
Value Today of $100 a Year for Years 56 to Forever $5.29
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The House Report on Duration
Says the House The present 56-year term is not enough to insure
an author and this dependents the fair economic benefits from this works. Life expectancy has increased substantially, and more and more authors are seeing their works fall into the public domain during their lifetimes, forcing later works to compete with their own early works in which copyright has expired
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The House Report on Duration
Says the House Although limitations on the term of copyright are
obviously necessary, too short a term harms the author without giving any substantial benefit to the public. The public frequently pays the same for works in the public domain as it does for copyrighted works, and the only result is a commercial windfall to certain users at the author’s expense.
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The House Report on Duration
In some cases the lack of copyright protection actually restrains dissemination of the work, since publishers and other users cannot risk investing in the work unless assured of exclusive rights.
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Benefits of Public Domain
Increased consumptive use Increased productive use
Eliminates coordination costs of licensed use: can be difficult to know who to license from
Reduces price for licensed use
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Eldred
Core Facts Congress passes the Copyright Term
Extension Act adding 20 years to copyrights Applies both for new copyrighted works and
existing copyrighted works Eldred challenges the extension as
unconstitutional for existing works as violative of Copyright Clause and 1st Amendment
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Copyright Clause
What does “for limited Times” mean if Congress can extend existing copyrights? What limits the power to do that? How is Congress promoting science and the
useful arts in extending the duration of existing works?
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First Amendment
Does increased control over expression interfere with the First Amendment?