What Researchers Should Know about Copyright Law

Our Copyright Statement:

  1. This material is © 2012 World War One Historical Association. All rights reserved except as noted. Permission is hereby granted to reproduce and distribute this material: a) solely for non-commercial purposes; and, b) provided all these conditions are also reproduced and distributed with them.
  2. This material is not a complete discussion of the subject by any means. Specifically, this material is aimed at assisting those researching WWI-era documents and photos. It is merely intended as a scholarly high-level illustration of the current state of the law in this area, as a very rough generic guideline to thinking and planning. The law in this area can be complex, and turn on very subtle facts.
  3. This material is not legal advice to the reader.

US Copyright Law.

Works published by the US Government are automatically within the public domain. Anyone may copy and distribute them (unless covered by some secrecy law). Works may be donated to the public domain by the author or his or her heirs.

Due a radical shift in the US Copyright law scheme, and the interaction of the terms of protections of those laws, as well as how the current law interprets and extends the prior copyrights, Literary Works and Photographs covered by US Copyright law that were published in the US in the year 1922, or prior to it, are automatically in the public domain at this time. Say a photograph was taken by an American photographer in 1918, and was first published here in the states, and was properly given copyright protection here. That protection has expired.

Unfortunately, because of the way that the current (and prior extensions thereto) copyright law deals with items originally filed under the old law, there is no “forward rolling date” that advances each year bringing items published in that year into the public domain.

The 1909 Copyright Act allowed for a 28 year initial copyright term, which could be extended by filing a form before the expiration of the 28th year, for another 28 year term at that time. For example, a US author publishes a history book in 1928, and properly complies with the existing US Copyright law at the time. If the author failed to file an extension, the book became part of the public domain beginning in January 1st 1957. Note, my very brief research indicates that a relatively small percentage of works were actually renewed, even as late as the 1960’s. Of course, the more valuable a work was, the more likely it was renewed. Finding out requires at least a review of the on-line archives of the Copyright Office (not easy, you really should search on the authors name and permutations and then on the title (and permutations), and read all the entries that match) and the archive is not an official government operation. Or, you may pay the Copyright Office’s rate of about $165/ hr, 2 hour minimum- but they do give free estimates (and it’s the official record).

Meanwhile, if the author (or his or her heirs) filed the proper extension during the initial term, the book was under copyright protection while a series of amendments to US Copyright law applied retroactively so that it was automatically entitled to a total term of 95 years from the date of first copyright: in our hypothetical case, that history book published in 1928 will be in copyright until December 31st 2023 (unless some wealthy content owning corporation(s) lobbies Congress for a further extension- then all bets are off).

For reference, works created after the ’78 Act are automatically protected by Copyright for the life of the author plus 70 years.

UK Copyright Law.

The UK law applicable at the time of WW1 was the 1911 Act. Unlike the US scheme at the time, Copyright under the ’11 Act was measured in most works for a period of life of the author plus 50 years. That means that for any particular book, say, one would have to discover who the author was, then find out when they died, and add 50 years. The book would be out of copyright after the end of the calendar year. For works that are done by two or more authors, it would be the longer of: life of the first author to die plus 50 years, or the life of the longest surviving author. Publishing anonymously yields a term of 50 years from date of publication, unless you can find out the real name using reasonable efforts (added under the ’58 Act). So a history book published under a solid pseudonym in 1919 that remains unknown would have expired after then end of 1969.

Unlike the US, works by the UK government are not in the public domain, and are protected by Crown Copyright. Under the ’11 Act, Crown Copyright lasts for a period of 50 years from the date of publication. That would mean that Crown Copyright in a book published under Crown Copyright in say, 1918, expired at the end of 1968.

In general, the ’11 Act covers published photographs, but the copyright term is limited to 50 years from the date the negative was made. Therefore, a photograph published in 1917 has its copyright protection expire no later than the end of 1967, as the negative logically could not have been made after publication. Later Acts changed the trigger for the term, but for our purposes that detail is not important here.

Do not assume that copyright owned by colleges and universities is necessarily covered by this law. If they have their own contract with the Crown, such agreements are exempt from the ’11 Act. Also care must be used to determine if the work was published, and where, and when. The interactions can be complex.

Memo prepared by the law office of Kenneth Perata.

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