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A deadline is approaching for copyright holders of certain older unpublished works of authorship. Under the current copyright law, the term of the copyright of many such unpublished works by authors who died before 1977 will expire at the end of 2002, and others will expire at some time between 2002 and 2047. By publishing such works this year, however, these owners may obtain up to 45 years of additional copyright protection. Therefore, such owners must act soon to extend these copyright rights. The owner of the copyright in, for example, an unpublished manuscript written by Samuel Clemens, a private letter written by Albert Einstein or an unreleased song recorded by Jimi Hendrix all could benefit from publication before the end of 2002. Copyright owners of unpublished works created by authors who died before 1977 should consider publishing those works on or before Dec. 31, 2002, to take advantage of up to 45 years of extended copyright term provided by � 303(a) of the 1976 Copyright Act. By publishing the works before 2003, the copyright holder is guaranteed copyright protection for the work through 2047, thus extending the copyright term between one and 45 years, depending on when the author of the work died. Holders of such works, however, should first determine whether they are the legal owners of the copyright in the works before publishing them. If a person were to publish a work for which he does not own the copyright, he may subject himself to a possible claim of copyright infringement. He also might be extending the actual copyright owner’s term of copyright through his unauthorized publication, thereby injuring his own interests. Before the enactment of the 1976 Copyright Act, a dual system of copyright protection existed in the United States. Published works received federal protection under the terms of the 1909 Copyright Act, whereas unpublished works that were fixed in a tangible medium were protected by a system of common law copyright administered under state law. The common law copyright of an unpublished work existed in perpetuity until the work was published, thereby either entering the public domain or receiving statutory copyright protection. [FOOTNOTE 1] ABOLITION OF COMMON LAW RIGHTS Congress considered this dual system of copyright protection “anachronistic, uncertain, impractical, and highly complicated.” [FOOTNOTE 2]Congress thus enacted � 301 of the 1976 Copyright Act to abolish this system of common law copyright in favor of a unified federal system of copyright protection. [FOOTNOTE 3]Section 301 effectively eliminated common law copyright protection through its preemption of state laws that protected rights equivalent to federal copyright protection. [FOOTNOTE 4] Congress was nevertheless concerned that it might be an unconstitutional taking to eliminate common law copyright without providing for an alternative that would protect works once covered by the common law for at least a reasonable period of time. [FOOTNOTE 5]Congress added � 303(a) to the 1976 Copyright Act to substitute a federal statutory copyright for the abrogated common law copyright and to mitigate these constitutional due process concerns. [FOOTNOTE 6] CREATING INCENTIVE TO PUBLISH Section 303(a) bestowed federal copyright protection on all works not previously published or copyrighted that were created before Jan. 1, 1978, and therefore previously protected under a common law copyright. [FOOTNOTE 7]The term of the copyright bestowed by � 303(a) is equivalent to the term established for works created on or after Jan. 1, 1978 — the life of the author plus 70 years. [FOOTNOTE 8]To provide a reasonable period of protection for works whose original term of statutory protection would have expired before or shortly after the effective date of the 1976 act, � 303(a) provided that the term of copyright bestowed on previously unpublished works shall not expire in any case before Dec. 31, 2002. [FOOTNOTE 9] Furthermore, to encourage publication [FOOTNOTE 10]by copyright owners, if a work protected under � 303(a) is published before Dec. 31, 2002, the statute provides that the term of copyright granted to the work shall not expire before Dec. 31, 2047. [FOOTNOTE 11]Such publication effectively extends the copyright term between one and 45 years, depending on when the author of the work died. Publication is defined in � 101 of the 1976 Copyright Act as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership or by rental, lease, or lending.” At this time, it is still unclear whether posting a work on the Internet constitutes “publication” under the 1976 act. It appears that it may not, so owners of copyrighted works would be best advised to publish their works by more traditional means, such as distributing print versions of text, or discs and tapes of music. The incentive for a copyright owner to publish before the deadline is the greatest when the author died before 1933, as all works that remain unpublished by authors who died before 1933 will fall into the public domain as of Jan. 1, 2003. An incentive also exists for a copyright owner to publish previously unpublished works of authors who died between 1933 and 1976, as publication will extend the term of the copyright from anywhere between 44 years for unpublished works whose authors died in 1933 and one year for unpublished works of authors who died in 1976. Sec. 303(a) provides little or no incentive for the publication of works by authors who died in 1977 or later, however, as publication before 2003 will not extend the copyright granted by the section with an additional term of years. SOME HYPOTHETICALS The application of � 303(a) is difficult to comprehend in the abstract, as there are numerous dates, terms and predicates that operate together in multiple combinations. The following three hypothetical situations help clarify how � 303(a) works in practice. Suppose that X was a famous public figure who died in 1908. One of X’s descendants finds an unpublished letter written by X in 1902. Until Jan. 1, 1978, the contents of the letter were protected under common law copyright. This common law copyright existed in perpetuity and the letter was protected so long as it remained unpublished. As of Jan. 1, 1978, however, � 301 of the 1976 act abolished the common law copyright. In exchange, the letter received a federal statutory copyright under � 303. Under the first provision of � 303(a), the term of the statutory copyright granted to the letter, however, would have been equal to the life of the author plus 70 years. As the author had died in 1908, the term of the copyright would have expired on Dec. 31, 1978 — 70 years after the date of his death. To prevent the expiration of the copyright term so soon after � 301 abolished its once perpetual common law protection, � 303(a) further provides that the copyright in X’s letter will not expire until Dec. 31, 2002. Therefore, X’s letter receives an additional 24 years of guaranteed copyright protection under � 303(a). Furthermore, if X’s descendants decide to publish the letter before Dec. 31, 2002, they will receive an extended term of copyright until Dec. 31, 2047, an additional 45 years of protection. Therefore, even though the work may have lost its perpetual common law copyright with the enactment of � 301, the heirs of X have been granted 69 years of federal statutory protection in exchange. Now suppose that Y was a famous novelist who died in 1952. Y’s publisher owns the copyright in the manuscript of a novel that was written by Y in 1947 but was never published. Again, the publisher’s interests in the manuscript were protected under common law copyright until Jan. 1, 1978, and then gained a statutory copyright in the novel. The statutory term will expire on Dec. 31, 2022 — 70 years after the author’s death. Even though the term of copyright extends past Dec. 31, 2002, if the publisher publishes the novel on or before Dec. 31, 2002, the expiration date of the copyright term will be extended to Dec. 31, 2047. Therefore, by publishing the work before the end of 2002, the publisher retains copyright in the work for an additional 25 years. Finally, suppose that Z was a songwriter who died in 1977. Just before her death, Z wrote a song that was never published. During 1977, the song was protected under common law copyright. After Jan. 1, 1978, however, Z’s heirs received a statutory copyright in the song with a term of 70 years from the date of the songwriter’s death. The term of copyright in the song would last until Dec. 1, 2047, whether or not it was published before the end of 2002; therefore, Z’s heirs stand to gain no additional benefit from publishing the song before Dec. 31, 2002. DETERMINING LEGAL OWNERSHIP Before publishing such an unpublished work, the owner of the physical embodiment of the work should determine whether she is the legal owner of the copyright in the work. Even though a person may possess an unpublished letter, manuscript or song, that possession of the material object does not equate to ownership of the copyright in the work. Sec. 202 of the 1976 Copyright Act provides that “ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.” [FOOTNOTE 12] Moreover, ownership of a copyright may be transferred through any means of conveyance; transferred by operation of law; bequeathed by will, expressly or in a residual clause; or passed as personal property through intestate succession. [FOOTNOTE 13]Thus, the copyright in a work may be owned by someone other than the person who owns the material embodiment of the work, and going through the efforts of publication may do the owner of the copy no good. Furthermore, if the owner of the copy does not own the copyright, any publication on her part could possibly infringe the copyright possessed by the actual copyright owner. Thus, rather than extending the term of copyright in the work for her own benefit, she may expose herself to claims of copyright infringement, while potentially extending the copyright in the work for the actual copyright owners. [FOOTNOTE 14] ONE BENEFIT TO EXPIRATION In some cases, it may benefit a person in possession of an unpublished work to allow the copyright granted by � 303(a) to expire. If the person possesses the original work, but not the copyright in the work, and the author died before 1933, the copyright will expire on Dec. 31, 2002 — as long as the actual copyright owner does not publish. As of Jan. 1, 2003, the person owning the original work could then publish the work without fear of infringing the copyright. While the work would then be in the public domain, possession of the only copy of a work is often valuable in its own right, particularly in the case of unpublished works. Publishers might pay handsomely to publish an undiscovered manuscript or an important historical letter. Alternatively, if the owner of the copyright can be identified, it may also benefit owners of an original copy to contact the legal owner of the copyright and work out an agreement to share the proceeds of any license fees received from the exploitation of the extended copyright period following publication of the work before the 2002 deadline. Under this arrangement, both the copyright owner and the owner of the copy could mutually benefit from publication under � 303(a). [FOOTNOTE 15] Clearly, there is a strong incentive for copyright holders of unpublished works created by an author who died before 1977 to publish these works in 2002 to take advantage of the additional term of copyright under � 303(a). No matter how the owner of a work decides to proceed with any unpublished works in his possession, he should first investigate his legal claim to the ownership of the copyright in the work. Franklin B. Molin is a partner in the Pittsburgh office of Kirkpatrick & Lockhartand practices in copyright, trademark and entertainment law. He may be reached at [email protected] Jesse E. Busch is a Samuelson-Glusko fellow at University of Pittsburgh School of Law. ::::FOOTNOTES:::: FN1 See3 Melville B. Nimmer and David Nimmer, Nimmer on Copyright � 9.09 [A] at 9-131. FN2H.R. Rep. No. 94-1476, at 130 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5745. FN3 See id. FN417 U.S.C. 301(a) (2001). FN5 SeeH.R. Rep. No. 94-1476, at 139. FN6 See id.Sec. 303(a) of the 1976 Copyright reads: “Copyright in a work created before Jan. 1, 1978, but not theretofore in the public domain or copyrighted, subsists from Jan. 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before Dec. 31, 2002; and if the work is published on or before Dec. 31, 2002, the term of copyright shall not expire before Dec. 31, 2047. � 17 U.S.C. 303(a). FN7 See17 U.S.C. 303(a). FN8 See id.; see also17 U.S.C. 302. As originally enacted, the copyright term set forth in � 302 endured for the life of the author plus 50 years. However, the enactment of the Sonny Bono Copyright Term Extension Act extended the original term by 20 years. SeePub. L. No. 105-298 � 102(c) (1998). The term for anonymous works, pseudonymous works and works made for hire is 95 years from publication or 120 years from creation, whichever expires first. 17 U.S.C. 302(c). Such works usually will not benefit from � 303(a), as under � 303(a) only such works created before 1927 could achieve any extended term. Therefore, this article assumes that the works are not anonymous works, pseudonymous works or works made for hire. FN9 Id. FN10 SeeH.R. Rep. No. 94-1476, at 139. FN1117 U.S.C. 303(a). Before the Sonny Bono Copyright Term Extension Act, the extended term granted to works upon publication expired on Dec. 31, 2027. FN1217 U.S.C. 202 FN13 See17 U.S.C. 201(d). FN14Whether the “unauthorized” publication of an unpublished work by someone other than the copyright owner meets the � 303(a) “publication” requirement is still open to question, as no cases have yet interpreted the “publication” language of the 1976 Act for purposes of � 303(a). FN15 See ABKCO Music Inc. v. LaVere, 217 F. 3d 684 (9th Cir. 2000).

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