Terms of protection for foreign works
When we joined the Google Book Search project, we really didn’t have in mind that it would launch an internal effort to free books from obscurity. In fact, we expected Google’s effort all by itself to free the books. But, of course, things don’t always turn out like you think they will.
Google sponsors meetings of all of the library partners, and at our meeting in July in Ann Arbor, U Mich talked about its effort to augment Google’s public domain (pd) determinations with additional research of its own to move the U.S. pd date line from 1923 to whatever date really applied for individual works, based on either their renewal or non-renewal (for works published between 1923 and 1964), or their government works status (no protection at all). We here at UT were very excited about this effort (which I have greatly simplified here). In my role at UT’s Libraries, I had been looking for projects that might blend my existing copyright expertise with my evolving interests in the future of libraries in a networked world, and this seemed to fit the bill. Se we jumped in with both feet. We were lucky enough to get Maria to help us, with her extensive knowledge of the Benson and the ability to design a data collection database for us. We are about to test some of Michigan’s pd determinations for them, to confirm their process, or help them to tweak it if need be. So, we are just about ready to start our own data collection, to begin making pd determinations for our many foreign works, and right away we hit a big, big snag.
U.S. copyright law is complicated enough. I’ve always been horrified at how complicated it is. Check out the link in our sidebar called “Flow chart.” It shows in flow chart form how to make pd determinations for U.S. works. But that is nothing compared to the charts Maria began producing for us that showed the flow for pd determinations in some of our foreign jurisdictions. Geez. As I began to see these, I immediately started looking for a way out of what seemed like a totally NOT SCALABLE process. Of course, there is a way out, because we are in the U.S. Our law gives a set term of protection to foreign works that were not published here (many of which works, until 1996 GATT, were pd in this country for failure to comply with our requirements to use copyright notices and register renewals, etc.) — it’s 95 years from the date of publication. We had originally thought that we should establish pd status for the work in its country of origin, in addition to establishing the status for the work here in the U.S. But as I began to see how complication had been raised to an art form in some of these foreign jurisdictions, I began to realize that we probably could not offer anything of use for those countries, but discouragement. It’s not just that their statutes are, like ours, seemingly designed to obscure public domain status. Rather, it’s the proliferation of presidential proclamations, bilateral and multi-lateral treaty declarations, and difficulty in determining the relationship of such add-ons to the statutes themselves, that made the job of saying what the pd status of a work in its country of origin might be, just too impossible. One has to practically be an expert on U.S. copyright law to opine about pd status in this country. It’s just not practical for someone who doesn’t even speak the language to try to interpret foreign laws and come up with a pd determination. So, this is a big gap that we are not likely going to be able to effectively fill for our foreign works.
That’s not to say that we won’t contribute what we learn about our works to the public for its use. It’s just that we won’t likely be able to come to a determination in many, if not most, cases.
Next time I’ll talk about the “rule of the shorter term,” a Berne Convention mechanism that, for most Berne countries, allows use of the shorter term to determine pd status when two or more jurisdictions are involved in a use.
