may be useful to examine two related limitations on the strong-property-rights vision of the legislative enactments to date: first, the judge-made principle that creators may affirmatively renounce their own rights under copyright, and second, the introduction of licensing instruments that aim to effectuate such partial or total abandonments of copyright interests by authors.
2. Abandonment of Copyright
Before the Copyright Act of 1976, an author could effectively abandon copyright protection for a work and place it in the public domain by publishing without a valid copyright notice or by failing to renew the copyright after the expiration of the initial twenty-eight-year term of protection.[1] The 1976 Act substantially weakened the former alternative (by allowing authors to cure defective notices) and eliminated the latter alternative altogether (by creating a unitary copyright term lacking any renewal requirement).[2] The BCIA, in turn, eliminated mandatory notice entirely.[3] As a result, U.S. copyright law now supplies no clear statutory path for placing a work in the public domain during the author’s lifetime. Under the present statute, copyright rights attach automatically the moment a work is fixed in a tangible medium, and nothing in the statute provides for the possible loss of those rights during the lifetime of the author or for seventy years thereafter. This is in marked contrast to the Patent Act, which provides a number of avenues whereby inventions may enter the public domain.[4]
At first glance, the doctrine of copyright abandonment seems to fill the gap. The courts have, for more than a century, stated that copyright owners
- ↑ Under the Copyright Act of 1909, the initial term of protection for a validly acquired copyright was twenty-eight years, following which a renewal application for a second term (also of twenty-eight years) could be filed. See Act of March 4, 1909, ch. 320, § 23, 35 Stat. 1075, 1080 (codified at 17 U.S.C. § 24 (1976)). Failure to renew the copyright at the end of the initial twenty-eight-year term of protection placed the work in the public domain. See id. (“in default of . . . application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication”); see also G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469, 471 (2d Cir. 1951); Hoepker v. Kruger, 200 F. Supp. 2d 340, 345 (S.D .N.Y. 2002); Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 923 F. Supp. 1231, 1241 (N.D. Cal. 1995); Int’l Film Exch., Ltd. v. Corinth Films, Inc., 621 F. Supp. 631, 635 (S.D.N.Y. 1985). Vestiges of the two-term copyright framework that existed under the 1909 Act and earlier federal copyright statutes survive today in 17 U.S.C. § 304 (2006).
- ↑ The 1976 Act created a single fixed copyright term for all works fixed in a tangible medium of expression on or after January 1, 1978, consisting of the life of the author plus fifty years. See 17 U.S.C. § 302(a) (1976) (amended 1998). The life-plus-fifty copyright term was extended to life-plus-seventy in 1998, when Congress extended by twenty years the duration of all copyrights then in force. See 17 U.S.C. § 302(a) (2000); Eldred v. Ashcroft, 537 U.S. 186 (2003).
- ↑ See supra notes 171–74 and accompanying text.
- ↑ See infra notes 331–36 and accompanying text.
