IP Scholars conference, unpublished works

Elizabeth Townsend Gard, Unpublished Works in the Public Domain: A legal Assessment at Three. As a history graduate student working on a biography of a 20^th-century figure, Gard ran into numerous problems with the subject’s executor, and ended up going to law school to figure out what was going on. A newly discovered Beethoven manuscript is in the public domain, and that’s a big deal because of the change in the treatment of unpublished works established by the 1976 Copyright Act. The unpublished (unregistered) works of authors who died before 1936 are now in the public domain.

Publication, of course, is a mess under the 1909 Act. Microfilm is also a problem – if you microfilm papers for preservation, is it a limited or general publication? This is an actual problem with the Adams papers. They registered the papers under the 1909 Act; they do not seem to have renewed and don’t even seem to know about term extension, claiming that copyright expired in 2002 on the website.

Because of §104(a), we treat foreign works the same, so you can use a foreign unpublished work in the US under this rule too, but international issues will obviously loom large. Some countries protect longer; some countries protect forever. Orphan works problems abound in this field because archival data is limited.

Unauthorized publication: Henry Gates, Jr. buys a manuscript at an auction. He authenticates the text at great effort and publishes it in 2002 as The Bondwoman’s Narrative. Is the work under copyright until 2047 or did it expire in 2003? Gates didn’t distinguish between the preface and the main body of the text in his copyright claim. Did he get the copyright with the physical manuscript? Gard thinks the answer is no, because that old rule doesn’t apply to manuscripts. We might be sympathetic to him because of his effort, but the law isn’t on his side.

What’s the right response? People should use the works, even if there are scary copyright symbols on the works. Other scholars suggest claims for breach of warranty, unjust enrichment, and false advertising.