§ 302. — Duration of copyright: Works created on or after January 1, 1978.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC302]
TITLE 17--COPYRIGHTS
CHAPTER 3--DURATION OF COPYRIGHT
Sec. 302. Duration of copyright: Works created on or after
January 1, 1978
(a) In General.--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.
(b) Joint Works.--In the case of a joint work prepared by two or
more authors who did not work for hire, the copyright endures for a term
consisting of the life of the last surviving author and 70 years after
such last surviving author's death.
(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire.--
In the case of an anonymous work, a pseudonymous work, or a work made
for hire, the copyright endures for a term of 95 years from the year of
its first publication, or a term of 120 years from the year of its
creation, whichever expires first. If, before the end of such term, the
identity of one or more of the authors of an anonymous or pseudonymous
work is revealed in the records of a registration made for that work
under subsections (a) or (d) of section 408, or in the records provided
by this subsection, the copyright in the work endures for the term
specified by subsection (a) or (b), based on the life of the author or
authors whose identity has been revealed. Any person having an interest
in the copyright in an anonymous or pseudonymous work may at any time
record, in records to be maintained by the Copyright Office for that
purpose, a statement identifying one or more authors of the work; the
statement shall also identify the person filing it, the nature of that
person's interest, the source of the information recorded, and the
particular work affected, and shall comply in form and content with
requirements that the Register of Copyrights shall prescribe by
regulation.
(d) Records Relating to Death of Authors.--Any person having an
interest in a copyright may at any time record in the Copyright Office a
statement of the date of death of the author of the copyrighted work, or
a statement that the author is still living on a particular date. The
statement shall identify the person filing it, the nature of that
person's interest, and the source of the information recorded, and shall
comply in form and content with requirements that the Register of
Copyrights shall prescribe by regulation. The Register shall maintain
current records of information relating to the death of authors of
copyrighted works, based on such recorded statements and, to the extent
the Register considers practicable, on data contained in any of the
records of the Copyright Office or in other reference sources.
(e) Presumption as to Author's Death.--After a period of 95 years
from the year of first publication of a work, or a period of 120 years
from the year of its creation, whichever expires first, any person who
obtains from the Copyright Office a certified report that the records
provided by subsection (d) disclose nothing to indicate that the author
of the work is living, or died less than 70 years before, is entitled to
the benefits of a presumption that the author has been dead for at least
70 years. Reliance in good faith upon this presumption shall be a
complete defense to any action for infringement under this title.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2572; Pub.
L. 105-298, title I, Sec. 102(b), Oct. 27, 1998, 112 Stat. 2827.)
Historical and Revision Notes
house report no. 94-1476
In General. The debate over how long a copyright should last is as
old as the oldest copyright statute and will doubtless continue as long
as there is a copyright law. With certain exceptions, there appears to
be strong support for the principle, as embodied in the bill, of a
copyright term consisting of the life of the author and 50 years after
his death. In particular, the authors and their representatives stressed
that the adoption of a life-plus-50 term was by far their most important
legislative goal in copyright law revision. The Register of Copyrights
now regards a life-plus-50 term as the foundation of the entire bill.
Under the present law statutory copyright protection begins on the
date of publication (or on the date of registration in unpublished form)
and continues for 28 years from that date; it may be renewed for a
second 28 years, making a total potential term of 56 years in all cases.
[Under Public Laws 87-668, 89-142, 90-141, 90-416, 91-147, 91-555, 92-
170, 92-566, and 93-573, copyrights that were subsisting in their
renewal term on September 19, 1962, and that were scheduled to expire
before Dec. 31, 1976, have been extended to that later date, in
anticipation that general revision legislation extending their terms
still further will be enacted by then.] The principal elements of this
system--a definite number of years, computed from either publication or
registration, with a renewal feature--have been a part of the U.S.
copyright law since the first statute in 1790. The arguments for
changing this system to one based on the life of the author can be
summarized as follows:
1. The present 56-year term is not long enough to insure an
author and his dependents the fair economic benefits from his 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.
2. The tremendous growth in communications media has
substantially lengthened the commercial life of a great many works.
A short term is particularly discriminatory against serious works of
music, literature, and art, whose value may not be recognized until
after many years.
3. 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. 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.
4. A system based on the life of the author would go a long way
toward clearing up the confusion and uncertainty involved in the
vague concept of ``publication,'' and would provide a much simpler,
clearer method for computing the term. The death of the author is a
definite, determinable event, and it would be the only date that a
potential user would have to worry about. All of a particular
author's works, including successive revisions of them, would fall
into the public domain at the same time, thus avoiding the present
problems of determining a multitude of publication dates and of
distinguishing ``old'' and ``new'' matter in later editions. The
bill answers the problems of determining when relatively obscure
authors died, by establishing a registry of death dates and a system
of presumptions.
5. One of the worst features of the present copyright law is the
provision for renewal of copyright. A substantial burden and
expense, this unclear and highly technical requirement results in
incalculable amounts of unproductive work. In a number of cases it
is the cause of inadvertent and unjust loss of copyright. Under a
life-plus-50 system the renewal device would be inappropriate and
unnecessary.
6. Under the preemption provisions of section 301 and the single
Federal system they would establish, authors will be giving up
perpetual, unlimited exclusive common law rights in their
unpublished works, including works that have been widely
disseminated by means other than publication. A statutory term of
life-plus-50 years is no more than a fair recompense for the loss of
these perpetual rights.
7. A very large majority of the world's countries have adopted a
copyright term of the life of the author and 50 years after the
author's death. Since American authors are frequently protected
longer in foreign countries than in the United States, the disparity
in the duration of copyright has provoked considerable resentment
and some proposals for retaliatory legislation. Copyrighted works
move across national borders faster and more easily than virtually
any other economic commodity, and with the techniques now in common
use this movement has in many cases become instantaneous and
effortless. The need to conform the duration of U.S. copyright to
that prevalent throughout the rest of the world is increasingly
pressing in order to provide certainty and simplicity in
international business dealings. Even more important, a change in
the basis of our copyright term would place the United States in the
forefront of the international copyright community. Without this
change, the possibility of future United States adherence to the
Berne Copyright Union would evaporate, but with it would come a
great and immediate improvement in our copyright relations. All of
these benefits would accrue directly to American and foreign authors
alike.
The need for a longer total term of copyright has been conclusively
demonstrated. It is true that a major reason for the striking
statistical increase in life expectancy since 1909 is the reduction in
infant mortality, but this does not mean that the increase can be
discounted. Although not nearly as great as the total increase in life
expectancy, there has been a marked increase in longevity, and with
medical discoveries and health programs for the elderly this trend shows
every indication of continuing. If life expectancy in 1909, which was in
the neighborhood of 56 years, offered a rough guide to the length of
copyright protection, then life expectancy in the 1970's which is well
over 70 years, should offer a similar guide; the Register's 1961 Report
included statistics indicating that something between 70 and 76 years
was then the average equivalent of life-plus-50 years. A copyright
should extend beyond the author's lifetime, and judged by this standard
the present term of 56 years is too short.
The arguments as to the benefits of uniformity with foreign laws,
and the advantages of international comity that would result from
adoption of a life-plus-50 term, are also highly significant. The system
has worked well in other countries, and on the whole it would appear to
make computation of terms considerably simpler and easier. The registry
of death dates and the system of presumptions established in section 302
would solve most of the problems in determining when an individual
author died.
No country in the world has provisions on the duration of copyright
like ours. Virtually every other copyright law in the world bases the
term of protection for works by natural persons on the life of the
author, and a substantial majority of these accord protection for 50
years after the author's death. This term is required for adherence to
the Berne Convention. It is worth noting that the 1965 revision of the
copyright law of the Federal Republic of Germany adopted a term of life
plus 70 years.
A point that has concerned some educational groups arose from the
possibility that, since a large majority (now about 85 percent) of all
copyrighted works are not renewed, a life-plus-50 year term would tie up
a substantial body of material that is probably of no commercial
interest but that would be more readily available for scholarly use if
free of copyright restrictions. A statistical study of renewal
registrations made by the Copyright Office in 1966 supports the
generalization that most material which is considered to be of
continuing or potential commercial value is renewed. Of the remainder, a
certain proportion is of practically no value to anyone, but there are a
large number of unrenewed works that have scholarly value to historians,
archivists, and specialists in a variety of fields. This consideration
lay behind the proposals for retaining the renewal device or for
limiting the term for unpublished or unregistered works.
It is true that today's ephemera represent tomorrow's social
history, and that works of scholarly value, which are now falling into
the public domain after 28 years, would be protected much longer under
the bill. Balanced against this are the burdens and expenses of
renewals, the near impossibility of distinguishing between types of
works in fixing a statutory term, and the extremely strong case in favor
of a life-plus-50 system. Moreover, it is important to realize that the
bill would not restrain scholars from using any work as source material
or from making ``fair use'' of it; the restrictions would extend only to
the unauthorized reproduction or distribution of copies of the work, its
public performance, or some other use that would actually infringe the
copyright owner's exclusive rights. The advantages of a basic term of
copyright enduring for the life of the author and for 50 years after the
author's death outweigh any possible disadvantages.
Basic Copyright Term. Under subsection (a) of section 302, a work
``created'' on or after the effective date of the revised statute [Jan.
1, 1978] would be protected by statutory copyright ``from its creation''
and, with exceptions to be noted below, ``endures for a term consisting
of the life of the author and 50 years after the author's death.''
Under this provision, as a general rule, the life-plus-50 term would
apply equally to unpublished works, to works published during the
author's lifetime, and to works published posthumously.
The definition of ``created'' in section 101, which will be
discussed in more detail in connection with section 302(c) below, makes
clear that ``creation'' for this purpose means the first time the work
is fixed in a copy or phonorecord; up to that point the work is not
``created,'' and is subject to common law protection, even though it may
exist in someone's mind and may have been communicated to others in
unfixed form.
Joint Works. Since by definition a ``joint work'' has two or more
authors, a statute basing the term of copyright on the life of the
author must provide a special method of computing the term of ``joint
works.'' Under the system in effect in many foreign countries, the term
of copyright is measured from the death of the last survivor of a group
of joint authors, no matter how many there are. The bill adopts this
system as the simplest and fairest of the alternatives for dealing with
the problem.
Anonymous Works, Pseudonymous Works, and Works Made for Hire.
Computing the term from the author's death also requires special
provisions to deal with cases where the authorship is not revealed or
where the ``author'' is not an individual. Section 302(c) therefore
provides a special term for anonymous works, pseudonymous works, and
works made for hire: 75 years from publication or 100 years from
creation, whichever is shorter. The definitions in section 101 make the
status of anonymous and pseudonymous works depend on what is revealed on
the copies or phonorecords of a work; a work is ``anonymous'' if ``no
natural person is identified as author,'' and is ``pseudonymous'' if
``the author is identified under a fictitious name.''
Section 302(c) provides that the 75- and 100-year terms for an
anonymous or pseudonymous work can be converted to the ordinary life-
plus-50 term if ``the identity of one or more authors * * * is
revealed'' in special records maintained for this purpose in the
Copyright Office. The term in such cases would be ``based on the life of
the author or authors whose identity has been revealed.'' Instead of
forcing a user to search through countless Copyright Office records to
determine if an author's identity has been revealed, the bill sets up a
special registry for the purpose, with requirements concerning the
filing of identifying statements that parallel those of the following
subsection (d) with respect to statements of the date of an author's
death.
The alternative terms established in section 302(c)--75 years from
publication or 100 years from creation, whichever expires first--are
necessary to set a time limit on protection of unpublished material. For
example, copyright in a work created in 1978 and published in 1988 would
expire in 2063 (75 years from publication). A question arises as to when
the copyright should expire if the work is never published. Both the
Constitution and the underlying purposes of the bill require the
establishment of an alternative term for unpublished work and the only
practicable basis for this alternative is ``creation.'' Under the bill a
work created in 1980 but not published until after 2005 (or never
published) would fall into the public domain in 2080 (100 years after
creation).
The definition in section 101 provides that ``creation'' takes place
when a work ``is fixed in a copy or phonorecord for the first time.''
Although the concept of ``creation'' is inherently lacking in precision,
its adoption in the bill would, for example, enable a scholar to use an
unpublished manuscript written anonymously, pseudonymously, or for hire,
if he determines on the basis of internal or external evidence that the
manuscript is at least 100 years old. In the case of works written over
a period of time or in successive revised versions, the definition
provides that the portion of the work ``that has been fixed at any
particular time constitutes the work as of that time,'' and that,
``where the work has been prepared in different versions, each version
constitutes a separate work.'' Thus, a scholar or other user, in
attempting to determine whether a particular work is in the public
domain, needs to look no further than the particular version he wishes
to use.
Although ``publication'' would no longer play the central role
assigned to it under the present law, the concept would still have
substantial significance under provisions throughout the bill, including
those on Federal preemption and duration. Under the definition in
section 101, a work is ``published'' if one or more copies or
phonorecords embodying it are distributed to the public--that is,
generally to persons under no explicit or implicit restrictions with
respect to disclosure of its contents--without regard to the manner in
which the copies or phonorecords changed hands. The definition clears up
the question of whether the sale of phonorecords constitutes
publication, and it also makes plain that any form or dissemination in
which a material object does not change hands--performances or displays
on television, for example--is not a publication no matter how many
people are exposed to the work. On the other hand, the definition also
makes clear that, when copies or phonorecords are offered to a group of
wholesalers, broadcasters, motion picture theaters, etc., publication
takes place if the purpose is ``further distribution, public
performance, or public display.''
Although the periods of 75 or 100 years for anonymous and
pseudonymous works and works made for hire seem to be longer than the
equivalent term provided by foreign laws and the Berne Conventions, this
difference is more apparent than real. In general, the terms in these
special cases approximate, on the average, the term of the life of the
author plus 50 years established for other works. The 100-year maximum
term for unpublished works, although much more limited than the
perpetual term now available under common law in the United States and
under statute in some foreign countries, is sufficient to guard against
unjustified invasions of privacy and to fulfill our obligations under
the Universal Copyright Convention.
Records and Presumption as to Author's Death. Subsections (d) and
(e) of section 302 together furnish an answer to the practical problems
of how to discover the death dates of obscure or unknown authors.
Subsection (d) provides a procedure for recording statements that an
author died, or that he was still living, on a particular date, and also
requires the Register of Copyrights to maintain obituary records on a
current basis. Under subsection (e) anyone who, after a specified
period, obtains certification from the Copyright Office that its records
show nothing to indicate that the author is living or died less than 50
years before, is entitled to rely upon a presumption that the author has
been dead for more than 50 years. The period specified in subsection
(e)--75 years from publication or 100 years from creation--is purposely
uniform with the special term provided in subsection (c).
Amendments
1998--Subsecs. (a), (b). Pub. L. 105-298, Sec. 102(b)(1), (2),
substituted ``70'' for ``fifty''.
Subsec. (c). Pub. L. 105-298, Sec. 102(b)(3), in first sentence,
substituted ``95'' for ``seventy-five'' and ``120'' for ``one hundred''.
Subsec. (e). Pub. L. 105-298, Sec. 102(b)(4), in first sentence,
substituted ``95'' for ``seventy-five'', ``120'' for ``one hundred'',
and ``70'' for ``fifty'' in two places.
Section Referred to in Other Sections
This section is referred to in sections 303, 305, 406, 708 of this
title.
