To quote Albert Camus’ novel Jonas or the artist at work: “To create something new, one must be surrounded with the old." However, the “old” may not be that old, and it may still be subject to copyright protection. In such a case, an author that seeks to create a derivative work from the preexisting work, needs to obtain the permission from the original author. However, such permission is not required if the prior work has entered into public domain, meaning that the copyright protection over such work has expired.
Each January 1 is celebrated as Public Domain Day throughout the world, the day when copyrighted works, in accordance with the national legal requirements of most countries, transition into the public domain. Although Public Domain Day is not officially recognized by international organizations like WIPO, the same is celebrated by a number of different organizations worldwide.
The Public Domain Day of 2019 will be remembered by the fact that for the first time in this millennium, copyrighted works have entered into public domain in the United States. Works such as Cecil DeMille’s film The Ten Commandments, Agatha Christie’s novel The Murder on the Links, Aldous Huxley’s novel Antic Hay and many others entered into the public domain on January 1, 2019 for the territory of the U.S.
All of the above-mentioned works were published in 1923, and in accordance with U.S. law, the term of protection for such works was 95 years. These works were originally protected by the 1909 Copyright Act, and due to subsequent changes in legislation, the term of protection increased from up to 56 years originally (28 years with the possibility of one renewal for another 28 years) to up to 95 years (depending on various factors such as publication date, date of renewal, etc.). This extension of the term was introduced by the 1998 Copyright Term Extension Act (also known as the “Mickey Mouse Protection Act” due to extensive lobbing by the Walt Disney Company).
Because of the changes related to the term of protection of works that had been protected under the 1909 Copyright Act, a huge gap was created between the works that have been published in 1922 and those that were published in 1923. The works published in 1922 had a shorter term of protection, as they were not subject to the extension provided in the 1998 Copyright Term Extension Act. For that reason, those works entered into the public domain on January 1, 1998, while protection of works published in 1923 extended for an additional 20 years.
On the other hand, the current regime of copyright protection in the U.S. is governed by the 1976 Copyright Act (entered into force on January 1, 1978) that provides the term for copyright protection of 70 years following the author’s death (or 70 years following the death of the last coauthor in the event that the work is created by two or more coauthors). This term of protection is applicable only to works that have been created on or after January 1, 1978, or for works that were created before that date but were not published or registered before the U.S. Copyright office before January 1, 1978.
Also, under the 1976 Copyright Act, the term of protection for works made for hire and for anonymous and pseudonymous works is 95 years from first publication or 120 years from creation of the work, whichever is shorter. However, if the author’s identity is subsequently revealed, the standard term of 70 years following the author’s death applies.
Whenever the subject of copyrighted works entering into the public domain is discussed, it should be borne in mind that there is no such thing as entering into the public domain on a worldwide scale. Instead, each copyrighted work enters the public domain separately in each jurisdiction and in accordance with the copyright laws of such jurisdiction.
Although there are no registration formalities required for copyright protection in the majority of countries, that does not mean that the same work enjoys the same level of protection in each country. On the contrary, once the work is created (regardless of the place of creation) it is recognized in each country in accordance with the local law.
That means that the duration of a copyright will be calculated separately in each country in accordance with the term of protection provided in the national law (or in accordance with the minimal rights provided in international treaties such as the Berne Convention).
For instance, Agatha Christie’s novel The Murder on the Links is now in the public domain in U.S. territory, but still enjoys protection in a number of other countries. As Agatha Christie died on January 12, 1976, her works will not enter into the public domain before January 1, 2047 in all jurisdictions where copyright lasts for the author’s life and 70 years after the author’s death. The practical consequence is that U.S. publishers can freely publish this book without requesting any authorization from Christie’s legal successors and without any obligation to pay for the rights or to pay royalties. However, this convenience is limited to the U.S. only, and if the U.S. publisher would prefer to sell such a book in countries where copyright protection is still in force, they would need to obtain the necessary rights from Christie’s legal successors or otherwise might be found liable for copyright infringement.
Unlike the U.S., the perspective on copyright duration in the majority of European countries provides rather uniform rules for all works, regardless of the date of their publication (provided that the author of such works is known or that the works were not published under a pseudonym). In particular, this means that the term of protection is the same for all works that were subject to copyright (i.e. the works for which the protection has not expired) at the time when national copyright laws entered into force. There are, of course, some exceptions and some countries still have parallel systems in force similar to the one applicable in the US. Nonetheless, the majority of European jurisdictions recognize the system of copyright protection that lasts for the life of the author and 70 years following the death of the author (or 70 years following the death of the last surviving coauthor in the event of co-authorship). Furthermore, a vast number of these countries calculate the date of a work entering into the public domain from the first day of the year following the year in which the 70th anniversary of the author’s death occurred.
This means that under this system, works of authors who died in 1948 have entered into the public domain on January 1, 2019. Among many others, the works of the following authors are now in the public domain:
It should be borne in mind that in the majority of Civil Law systems (which is the dominant legal system in Europe excluding the UK and Ireland), copyright laws make a clear distinction between duration of moral and economic rights of the author. Some common moral rights are the right to attribution, right to the integrity of the work and right to object to any use of the work that could harm the author's reputation. The practical consequence of such a distinction is that in the majority of Civil Law systems, only economic rights are subject to expiration, while moral rights last indefinitely.
Therefore, although the economic rights may have expired in certain jurisdictions, that does not necessarily mean that the moral rights have expired as well, and one can still be held liable for infringement of the moral rights of the author.
As we can see from the above, copyright duration is a complex question, and works that are in the public domain in one country, have not necessarily reached that status in another country. Also, entry into the public domain does not necessarily result in the expiry of moral rights on the side of the author’s legal successors. Public Domain Day, therefore, might be celebrated throughout the world each January 1, but the content of the celebration may differ significantly in each country.
Getting back to Albert Camus’ quote from the beginning of this article, we can agree that “old” is necessary for development of “new” and that free access to prior works makes a great significance in the development of each author. It is not just a matter of influence and learning process that builds new authors. Adaptation of prior works by creating derivative works also provides a whole new spectrum of creativity and the ability to give fresh life to existing works. And one will not be able to freely give fresh life to Albert Camus’ works until 2031, at least in Europe