Excellent article on an extremely difficult point of US copyright law (even more difficult when viewed from abroad). Thanks for posting.
The publication doctrine creates, depressingly, yet another class of “orphan works:” orphans who might have parents, but are trapped in archives with little hope for release within a reasonable timeframe. Peter Hirtle has, appropriately, called them “zombie” works: “Archival collections are perhaps the purest representation of the “orphan works”‖ problem -- those works still protected by copyright whose current rights owners cannot be found because they either can’t be identified or can’t be located. As an early speaker at this conference noted, they might better be called “zombie”‖ works. They are the living dead that nevertheless threaten us all with ruin. Archivists live every day with billions of “zombie”‖ copyrighted works created by the “life plus seventy”‖ term. 12 Consider this: I was recently told that the oldest work still protected by copyright in the U.K., which has a “life plus seventy”‖ term for published works, was published in 1859. 13 (The author died in 1940.) That means, conceivably, any work created since 1859 could be protected by copyright. But we can assume that one is at least in young adulthood when the first publication appears (seventeen in the case of this poem), whereas an unpublished work could easily be from someone even younger. Furthermore, published authors have some degree of prominence and it may be possible to trace them; authors of unpublished works may be incredibly anonymous…” Peter B. Hirtle<http://academiccommons.columbia.edu/catalog?f%5bauthor_facet%5d%5b%5d=Hirtle,%20Peter%20B.>, 2010, Undue Diligence?, Columbia University Academic Commons,http://hdl.handle.net/10022/AC:P:10457 Now there’s a legal term I can relate to. For more on zombies and the public domain: http://www.mymodernmet.com/profiles/blogs/pride-and-prejudice-and?context=tag-literature Amalyah Keshet Head of Image Resources & Copyright Management The Israel Museum, Jerusalem -----Original Message----- From: mcn-l-boun...@mcn.edu [mailto:mcn-l-boun...@mcn.edu] On Behalf Of Deborah Wythe Sent: 27 July, 2015 3:09 PM To: mcn-l@mcn.edu; mu...@yahoogroups.com Subject: [MCN-L] Copyright at the Museum: Using the Publication Doctrine to Free Art and History. Worth a read: Copyright at the Museum: Using the Publication Doctrine to Free Art and History. Deborah R. Gerhardt University of North Carolina (UNC) at Chapel Hill - School of Law; University of North Carolina (UNC) at Chapel Hill, September 5, 2014 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2505041 Peter Hirtle commented on the article on the Archives and Archivists listserv: There is an excellent discussion of the issue in Deborah Gerhardt's recent article, "Copyright at the Museum: Using the Publication Doctrine to Free Art and History" 61 J. Copyright Soc'y U.S.A. 393 (2014), available at SSRN: http://ssrn.com/abstract=2505041. Gerhardt cites the opinion of the leading copyright treatise (Nimmer on Copyright): [p]lacing a work in a public file on or after January 1, 1978, clearly does not constitute an act of publication . . . . Some pre-1978 cases held that filing in a governmental office constitutes a publication. However, the better view was that such filing did not constitute a publication. Gerhardt then looks at the actual cases involving publication. Her discussion of "Works Deposited in Government Archives" begins on p. 431. She confirms that in most cases, the Nimmer conclusion is correct. Her finding: "the public availability of the work in the government archive was not enough to constitute publication." (An aside: in the rest of the article, Gerhardt wants to argue that deposit of unpublished material in a non-governmental archives or library does constitute publication. Hence, by donating material to an archives, copyright owners "published" that material - and abandoned all copyright in the process. It is an argument that I think would be very bad for archives if adopted.) Deb Wythe Brooklyn Museum deborahwy...@hotmail.com<mailto:deborahwy...@hotmail.com>
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