Republishing and the public domain
Reader Tim Campbell, a Canadian, is struggling to understand what the copyright implications are when an older work is incorporated into a newer work.
The scenario he’s specifically looking at is this:
• A Canadian author wrote a two volume history of a town and its inhabitants. The first volume was published in 1895 and the second volume in 1896. The author then died in 1901.
• In 1972, a second Canadian author published a history of the same town. He incorporated all of the first author’s work plus additional material.
• The second author’s book was reprinted in 1978 and 1984.
Here’s the question: what’s the copyright status of the first author’s books now that they’ve been incorporated into the second author’s book?
Great question. And the answer isn’t going to be a whole lot different between Canadian law and American law so we can all benefit from it.
In both Canada and the United States, copyright protection is time-limited. Once a specific number of years have passed after a key event — in this case, the death of the author since we’re talking solely about published works — all copyright protection ends and the work itself passes into what’s called the public domain.
The public domain is defined the same way in the United States and Canada. The U.S. Copyright Office explains it this way:
The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.1
It’s the same in Canada:
Public domain or PD is commonly used to refer to content that is not protected by copyright law. Such content may not be protected for a variety of reasons … (W)hen a work is in the public domain, that work may be used and copied freely without any permission from, or payment to, the copyright owner. For example, you could publish a PD book in print or electronic form. You may also modify the book in any manner. Note that this is true in the U.S. and Canada…2
The big difference between the United States and Canada is when a published work becomes public domain. In the United States right now, it’s 70 years after the death of the author.3 In Canada right now, it’s 50 years after the author’s death.4
So… in either country, anything published is going to become public domain — free for everyone to use without permissions or licenses — and the only difference is when. In this particular case, since the first author died in 1901, the very latest the two original volumes became public domain would be 1971 (under U.S. law) and 1951 (under Canadian law).
But what happened to the public domain status of those earlier books when they were republished, and incorporated into the later book?
The answer — under both U.S. and Canadian law — is simple: nothing.
You can’t get copyright protection on the old public domain works just by adding them into a newer, later work that may have its own copyright. That later work is called a derivative work, and it may be entitled to its own copyright — but only for the new, additional materials added by the later author or authors. The U.S. Copyright Office makes that clear:
The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party.
As a result, it is not possible to extend the length of protection for a copyrighted work by creating a derivative work. A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, is also an underlying “work” from which derivative authorship may be added, but the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.5
Canadian law doesn’t use the term “derivative work” but instead would regard this as part of a compilation. And, as to compilations, the law is clear: “The mere fact that a work is included in a compilation does not increase, decrease or otherwise affect the protection conferred by this Act in respect of the copyright in the work.”6 In other words, adding public domain material into the new work didn’t change the public domain character of the older works.
What is copyrighted in the new work? Anything added by the authors or editors. A foreword. An additional essay or photo or image. A discussion or analysis that wasn’t in the old work. In short — everything that was created or added by the new work, including the specific organization and selection of materials to be included. For example, if I take 20 poems out of the 200 written by a poet who died more than 70 years ago and arrange them in a particular way, I can get protection for that arrangement and it can’t be copied.
But the original work that was in the public domain? It’s still there, in the public domain.
With my usual caveats about this not being legal advice,7 I can tell you that, in your shoes, I’d go for it, Tim.
Republication didn’t move those older works out of the public domain by so much as a millimeter north of the border or an inch south of the border.
- “Where is the public domain?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 24 Feb 2014). ↩
- Lesley Ellen Harris, “What Enters the Public Domain in 2013 as Defined by Copyright Laws?,” Copyrightlaws.com (http://www.copyrightlaws.com : accessed 24 Feb 2014). See also Bob H. Sotiriadis, “A Summary of Some Distinctions between Canadian and American Copyright Law and Practice,” PDF file, Robic law firm (http://www.robic.ca/ : accessed 24 Feb 2014). ↩
- See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 24 Feb 2014). ↩
- Canadian Intellectual Property Office, “How long does copyright last?,” A Guide to Copyright (http://www.cipo.ic.gc.ca : accessed 24 Feb 2014). ↩
- U.S. Copyright Office, Circular 14: Copyright in Derivative Works and Compilations, PDF version at 2 (http://www.copyright.gov : accessed 24 Feb 2014), emphasis added. ↩
- §2.1(2), Copyright Act, R.S.C., 1985, c. C-42, Justice Laws Website, Government of Canada (http://laws-lois.justice.gc.ca : accessed 24 Feb 2014). ↩
- Judy G. Russell, “Reprise: Rules of my road,” The Legal Genealogist, posted 26 Apr 2013 (https://www.legalgenealogist.com/blog : accessed 24 Feb 2014). ↩