1. Class 10 Copyright, Winter, 2010 Duration Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-10 Randal C. Picker. All Rights Reserved.

2. October 16, 2015Copyright © 2005-10 Randal C. Picker2 Current Statute: Duration n 302(a) In General. u 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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10. Duration under the 1831 Act n Key Features u 28 years duration from the time of recording of the copyright as provided in the act u 14 year renewal term possible October 16, 2015Copyright © 2005-10 Randal C. Picker10

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12. A Study in Scarlet n Do the Numbers u American Publication: 1890 u Assume appropriate initial copyright, then initial term 28 years u Assume appropriate renewal for second 14 year term u Should have entered the public domain in say 1932 October 16, 2015Copyright © 2005-10 Randal C. Picker12

13. Duration under the 1909 Act n Key Features u Newly-Copyrighted Works w Initial 28-year term w Ran from date of first publication w Copyright itself could be forfeited if formalities weren’t met w Second renewal term of an additional 28- years if mechanics of renewal were done properly October 16, 2015Copyright © 2005-10 Randal C. Picker13

14. Duration under the 1909 Act n Key Features u Existing Works w For works still in copyright, 56-year term extended to them October 16, 2015Copyright © 2005-10 Randal C. Picker14

15. A Study in Scarlet n Do the Numbers u American Publication: 1890 u First 28-year term ends 1918, so in copyright at passage of 1909 Act u Then eligible for second 28-year term under the 1909 Act u Should have entered the public domain in say 1946 (and presumably did) October 16, 2015Copyright © 2005-10 Randal C. Picker15

16. Extensions of Existing Copyrights under 1909 Act n Add More Years u Congress passed a series of temporary copyright extensions for existing works in anticipation of broader copyright legislation u Footnote 2 in Eldred sets for the nine temporary extensions leading into the 1976 legislation n Means works didn’t enter public domain October 16, 2015Copyright © 2005-10 Randal C. Picker16

17. Duration Under the 1976 Act n Key Event Shift u Point of creation triggers copyright, not publication n For New Works Jan 1, 1978 and forward u Life of the author + 50 years from the point of creation u [Note: changed to life + 70 years by CTEA] October 16, 2015Copyright © 2005-10 Randal C. Picker17

18. Duration Under the 1976 Act n What about works in existence before Jan 1, 1978? u Three categories w Already in the public domain w Not in the public domain and not in the copyright system (e.g., created but unpublished) w Already in the copyright system October 16, 2015Copyright © 2005-10 Randal C. Picker18

19. Duration Under the 1976 Act n In the Public Domain? Stay in the Public Domain u 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.” October 16, 2015Copyright © 2005-10 Randal C. Picker19

20. Duration Under the 1976 Act n Sec. 303: Created but Unpublished u 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 u [Note: 2007 date was changed to 2027 in CTEA] October 16, 2015Copyright © 2005-10 Randal C. Picker20

21. Duration Under the 1976 Act n Sec. 304: Already in the Copyright System u Two further subcategories w 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) w Works in their second term Second term extended so as to make total term 75 years. u [Note: amended in 1992 and 1998] October 16, 2015Copyright © 2005-10 Randal C. Picker21

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23. The Devil’s Foot n Do the Numbers u American Publication: 1911 u Assume appropriate initial copyright, then initial term 28 years u Assume appropriate renewal for second 28 year term u Should have entered the public domain in say 1967 October 16, 2015Copyright © 2005-10 Randal C. Picker23

24. The Devil’s Foot n But Didn’t u Interim extension statutes would have protected it u Under 1976 Act, would have been in second term and received new regime total of 75 years from publication n Should then enter public domain in say 1986 (and, presumably, did so) October 16, 2015Copyright © 2005-10 Randal C. Picker24

25. 1909 Act Entry into the Public Domain n To Sum u New works created under the 1909 act didn’t enter the public domain 56 years in u Temporary extensions carried those to the 1976 act u That act generally moved those works to a 75 year term u In 1984, 1909 act works start entering the public domain October 16, 2015Copyright © 2005-10 Randal C. Picker25

26. Rolling Forward from 1984 n Copyright Renewal Act of 1992 u Changed rules regarding renewal to match structure of the current statute u 304(a)(1) provides for automatic renewal for second term u No longer required to file for second term of renewal October 16, 2015Copyright © 2005-10 Randal C. Picker26

27. Rolling Forward from 1984 n Copyright Renewal Act of 1992 u Works don’t enter the public domain through non-renewal u 1992 – 28 = 1964 w Works before 1964 could have failed to file for second term and if so would have entered the public domain w See G&G, 7 th ed, p. 435 October 16, 2015Copyright © 2005-10 Randal C. Picker27

28. Rolling Forward from 1984 n Copyright Term Extension Act of 1998 u Added twenty years to duration for works still in copyright u Applied on going forward basis and to preexisting works October 16, 2015Copyright © 2005-10 Randal C. Picker28

29. Rolling Forward from 1984 n Copyright Term Extension Act of 1998 u 1998 – 75 = 1923 w 75 year term in place prior to passage of CTEA would have expired for works published prior to 1923 w See G&G, 7 th ed, p. 435 October 16, 2015Copyright © 2005-10 Randal C. Picker29

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31. Shoscombe Old Place n Do the Numbers u American Publication: Say 1928 u Assume appropriate initial copyright, then initial term 28 years u Assume appropriate renewal for second 28 year term u 1928 + 56 = 1984 u Still in copyright on Jan 1, 1978, effective date of 1976 Act October 16, 2015Copyright © 2005-10 Randal C. Picker31

32. Shoscombe Old Place n Do the Numbers u American Publication: Say 1928 u That means triggered revised 75 year period u 1928 + 75 = 2003 u But still alive at time of CTEA, so another 20 years = 2023! October 16, 2015Copyright © 2005-10 Randal C. Picker32

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34. Trace the Effect of the Extensions n If still in copyright on July 1, 1909 (effective date of 1909 Act) u Got boost from 42 years to 56 years u Something published immediately before the 1909 Act, say in 1908, would have a 56 year duration: 1908 + 56 = 1964 u 1 st temporary extension passed Sept 19, 1962 October 16, 2015Copyright © 2005-10 Randal C. Picker34

35. Trace the Effect of the Extensions n If still in copyright on July 1, 1909 (effective date of 1909 Act) u 1962 – 56 = 1906 w Something published before say 1906 should have been out of copyright and so would not have been extended by the 1962 Act w Something after that would have been October 16, 2015Copyright © 2005-10 Randal C. Picker35

36. Trace the Effect of the Extensions n If still in copyright on Jan 1, 1978 u Got boost from 56 years to 75 years (an additional 19 years) u And remember, given temporary extensions, everything published under 1909 Act was still alive October 16, 2015Copyright © 2005-10 Randal C. Picker36

37. Trace the Effect of the Extensions n If still in copyright on before effective date of CTEA (90 days after Oct 27, 1998) u Got boost from 75 years to 95 years (an additional 20 years) u But intervening period without extensions means that work published before 1923 (1998 – 75) had entered the public domain October 16, 2015Copyright © 2005-10 Randal C. Picker37

38. Holmes and the Public Domain n Is Sherlock Holmes, the character, in the public domain? n Pannonia Farms, Inc. v. USA Cable, 2004 WL 1276842 (S.D.N.Y.,2004) u “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.” October 16, 2015Copyright © 2005-10 Randal C. Picker38

39. Holmes and the Public Domain u “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.” October 16, 2015Copyright © 2005-10 Randal C. Picker39

40. Holmes and the Public Domain u “ 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.” October 16, 2015Copyright © 2005-10 Randal C. Picker40

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54. October 16, 2015Copyright © 2005-10 Randal C. Picker54 Constitution n The Congress shall have the Power... u 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; u (Art. I, § 8, cl. 8)

55. October 16, 2015Copyright © 2005-10 Randal C. Picker55 Duration n Starting Questions u What is the right duration looking forward? u What is the right way to structure duration? u Under what circumstances, if any, should we want Congress to extend duration for existing works? u Does Congress have the power to do that?

56. October 16, 2015Copyright © 2005-10 Randal C. Picker56 One-Period Present Value n Numbers u 10% interest rate u From Today to Tomorrow w $1 today is worth $1.10 one year from now u From Tomorrow to Today w $1.10 one year from now is worth $1 today

57. October 16, 2015Copyright © 2005-10 Randal C. Picker57 One-Period Present Value n Formulas

58. October 16, 2015Copyright © 2005-10 Randal C. Picker58 Two-Period Present Value n Numbers u From Today to Tomorrow to The Period After Tomorrow w $1 today—present value—is worth $1.10 one year from now, is worth 1.21 two years from now u From Two Years from Now to Today w A future value of $1.21 two years from now is worth $1 today

59. October 16, 2015Copyright © 2005-10 Randal C. Picker59 Two-Period Present Value n Formulas

60. October 16, 2015Copyright © 2005-10 Randal C. Picker60 Two-Period Stream n Question u What is $1.10 one year from now + $1.21 two years from now worth today? n We have done this already! u $1.10 one year from now is worth $1 today u $1.21 two years from now is worth $1 today u Together, they are worth $2 today

61. October 16, 2015Copyright © 2005-10 Randal C. Picker61 Two-Period Stream Again n Question u What is $1 one year from now + $1 two years from now worth today? n Answer u $1/1.1 + $1/1.21 = 1.735

62. October 16, 2015Copyright © 2005-10 Randal C. Picker62 N-Period Stream n Assumptions u Stream will pay fixed amount C in every period u One-period interest rate r is same in every period n What is the formula that tells us the present value of a stream of N periodic payments of C?

63. October 16, 2015Copyright © 2005-10 Randal C. Picker63 N-Period Stream n Formula

64. October 16, 2015Copyright © 2005-10 Randal C. Picker64 Forever Period Stream n Formula

65. October 16, 2015Copyright © 2005-10 Randal C. Picker65 Do the Numbers n Assumptions u C = $100 u R = 10% (0.1) n Value Today of $100 a Year Forever u $1000 n Value Today of $100 a Year for Fifty-Five Years u $994.71

66. October 16, 2015Copyright © 2005-10 Randal C. Picker66 Do the Numbers n Value Today of $100 a Year for Years 56 to Forever u $5.29

67. October 16, 2015Copyright © 2005-10 Randal C. Picker67 The House Report on Duration n Says the House u 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

68. October 16, 2015Copyright © 2005-10 Randal C. Picker68 The House Report on Duration n Says the House u 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.

69. October 16, 2015Copyright © 2005-10 Randal C. Picker69 The House Report on Duration u 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.

70. October 16, 2015Copyright © 2005-10 Randal C. Picker70 Benefits of Public Domain n Increased consumptive use n Increased productive use u Eliminates coordination costs of licensed use: can be difficult to know who to license from u Reduces price for licensed use

71. October 16, 2015Copyright © 2005-10 Randal C. Picker71 Eldred n Core Facts u Congress passes the Copyright Term Extension Act adding 20 years to copyrights u Applies both for new copyrighted works and existing copyrighted works u Eldred challenges the extension as unconstitutional for existing works as violative of Copyright Clause and 1 st Amendment

72. October 16, 2015Copyright © 2005-10 Randal C. Picker72 Copyright Clause n What does “for limited Times” mean if Congress can extend existing copyrights? u What limits the power to do that? u How is Congress promoting science and the useful arts in extending the duration of existing works?

73. October 16, 2015Copyright © 2005-10 Randal C. Picker73 First Amendment n Does increased control over expression interfere with the First Amendment?