The Birth of the Unpublished Public Domain and its International Implications

Abstract

On January 1, 2003, a small, quiet historic transformation took place throughout the United States: unpublished works in mass came into the public domain for the first time. Section 302 of the 1976 Copyright Act created a unified system of duration, whereby unpublished and published works carry a term of life of the author plus seventy years. In order to aid with a transition from a state common law perpetual system to a "limited Times" federal statutory system, the 1976 Copyright Act built two mechanisms for change in the form of Section 303(a). First, Section 303(a) guarantees that no work would go into the public domain until after December 31, 2002, regardless of how long the author had been deceased. Second, the Copyright Act in Section 303(a) provided an incentive for unpublished works created but not published before 1978. If the unpublished work was published for the first time between January 1, 1978 and December 31, 2002, the new published work (protecting therefore the published portions of the unpublished work) would be granted further protection until December 31, 2047. What this means is that as of January 1, 2003, all unpublished works, by authors who had been deceased longer than seventy years, or in other words, had been deceased before January 1, 1933, were now in the public domain. This paper explores the legal elements of this change, both in a domestic as well as international context.

Keywords: public domain, unpublished, Section 303(a), 1909 Act, 1976 Copyright Act, Rule of the Shorter Term