Much has been written recently about the importance of this past January 1 to scholars and members of the creative professions. Referred to as the annual Public Domain Day, it was of particular significance this year because the extension from 75 to 95 years since publication of the copyright term of published works, which became effective in 1999 with the passage of the Sonny Bono Copyright Term Extension Act (CTEA), had finally been reached. At long last, published works would resume entering the public domain after the hard-stop imposed back on Jan 1, 1998, when copyrights on works published in 1922 had expired. The buzz throughout these interested communities was pervasive and palpable. After nearly a generation, 1923 had finally “arrived”.
Research libraries, with their vast holdings of out-of-print works, are central to the availability of these older items, and many have anticipated this milestone with exhibits or websites featuring new copyright-free collections. Additionally, in light of the significant e-books collaboratives and other digital initiatives that have emerged in the past 20 years, such as HathiTrust and Google Books, many works were already digitized and had been available in limited fashion or in snippets. Most likely the works from 1923 will be made available digitally almost immediately. (As of this writing, HathiTrust had over 53,000 items fully digitized in its collection of 1923 works.)
Several 1923 imprints held by Yeshiva University Libraries
While this event greatly impacts traditional library materials, its effect on archival materials is not as significant. Since these holdings primarily consist of unpublished works, different copyright rules apply. In fact, an equally noteworthy Public Domain Day for unpublished works took place on Jan. 1, 2003, arising from the expiration of a 25-year grace period for works of this type impacted by the 1976 Copyright Act (effective Jan. 1, 1978). Prior to this legislation, unpublished materials were not subject to *any* statutory copyright laws; they remained in copyright in perpetuity under common law enforced by the states so long as they remained unpublished and had not been registered with the U.S. Copyright Office. The 1976 Act expanded copyright protection to include unpublished items, for a term of the “life of the author plus 50 years” (later extended to 70 years by the 1998 CTEA). However, to prevent works whose authors had died more than 50 years earlier from passing immediately into the public domain on Jan. 1, 1978, the Act provided for a minimum period of protection of them for 25 years, making Jan. 1, 2003 the red-letter date when all heretofore not registered, unpublished works whose authors had died before 1953 would be in the public domain. Even though by the time this date arrived, the CTEA had pushed back this date to 1933, huge troves of archives and manuscript material still became fully and freely available for use and adaptation beginning that day. Since then, unpublished materials whose authors died more than 70 years earlier have continued to enter the public domain each January 1.
Copyright presents complex challenges for libraries and archives seeking to make their collections available digitally, and is something the staff of Yeshiva University Archives has spent much time assessing. Our rich manuscript holdings contain many items that are out of copyright, and a number of them are available through our Digital Library portal.
This is less true for our archival collections, which are primarily early-mid 20th century materials, and consist of many organizational records (whose copyright term is 120 years from the date of creation). Moreover, copyright issues are multiplied exponentially for archival collections, since they typically contain material created by many people other than the originator of the collection (consider, for example, the numerous letters written by others in an individual’s papers or organization’s records). The copyright status of these items is often untraceable, making them orphan works, with additional copyright issues to consider. Yeshiva University Archives staff members assess these factors, and many more in evaluating our materials for digitization. To do so requires us to remain abreast of the current scholarly literature and best practices of our profession. Furthermore, and to clearly define the terms of ownership going forward, we make sure to discuss copyright issues and digitization with potential donors of archival collections, and since 2011, our standard Deed of Gift agreement has included a clause transferring the donor’s intellectual property rights to the Archives.
Despite the numerous challenges of copyright, and other factors such as funding and staff time, Yeshiva University Archives has made some important collections available digitally, which can be browsed on our Digital Projects webpage. We hope to make more available in the future.
Posted by:
Deena Schwimmer, Archivist
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