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In the past, copyright terms have been repeatedly extended, and some people have called for extensions that would effectively make copyright eternal, such as terms of 10.000 years or "forever minus one day".

If a law were passed today in the United States extending copyright from its current term of "life of the author + 70 years" to "life of the author + 10.000 years", what exactly would happen? In particular:

  • Would, say, Shakespeare's works (published before the introduction of copyright) leave the public domain?
  • Would works previously under copyright whose original copyright term had already expired gain renewed copyright?
  • If the answer to the second question is yes, what would happen to derivative works of those works?
  • 1
    Obviously any such law would have to address the questions you raise. So this question does not seem answerable. – feetwet Jul 6 '15 at 14:01
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See Golan v. Holder 565 U. S. ____ (2012).

The question was whether Congress could pass a law that caused works in the public domain to regain copyright.

The Supreme Court held that:

The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain.

...

Historical practice corroborates the Court’s reading of the Copyright Clause to permit the protection of previously unprotected works.

So, yes, works can come out of public domain and into Copyright protection.

What about people who had been relying on the works not having copyright (i.e. people who had created derivative works, etc.)? That depends on how Congress intends the hypothetical law to apply to them. In the law in question in Golan v. Holder, Congress planned ahead for this, and included provisions for it in the law (quoting from Golan v. Holder):

Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce—either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. After that, reliance parties may continue to exploit existing copies for a grace period of one year. Finally, anyone who, before the URAA’s enactment, created a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree.

Last, could Congress extend copyright for 10,000 years? In principle, the Supreme Court has not said anything against this, but they have indicated that there is some line beyond which a copyright term would no longer be considered a "limited time" as required by the Constitution.

In Golan v. Holder they mention in passing hypothetical successive re-applications of Copyright to a work after it expires, calling it "legislative misbehavior":

the hypothetical legislative misbehavior petitioners posit is far afield from the case before us.

And in Eldred v. Ashcroft, they mention in passing hypothetical unlimited successive extensions of copyright, each of limited time, again calling that "legislative misbehavior":

Concerning petitioners' assertion that Congress could evade the limitation on its authority by stringing together an unlimited number of "limited Times," the court stated that such legislative misbehavior clearly was not before it.

I could imagine a court holding that the "limited times" clause in the Constitution does not permit Congress to extend copyright for 10,000 years, which is longer than the existence of the U.S. or any countries or even civilizations that the founders were aware of at the time of the Constitution's writing.

  • Is there any reason to regard copyrights in the US as being anything less than infinite? Since the Supreme Court has ruled that retroactive copyright extensions for existing works somehow serve to promote progress in the useful arts, I see no reason to believe that copyrights will not be extended indefinitely to the point that no material will ever again usefully enter the Public Domain in the USA. – supercat Jul 6 '15 at 22:50
  • @supercat One reason to think that such behavior is unconstitutional is the that Supreme Court referred to that hypothetical as "legislative misbehavior". While I admit that has only been dicta, it seems to be to be a strong signal that there is some constraint on the interpretation of "limited times". – user248 Jul 6 '15 at 23:10
  • @supercat Also, the court did not hold that "retroactive copyright extensions for existing works somehow serve to promote progress in the useful arts". They observed that Congress had a rational basis for believing that retroactive copyright extensions somehow serve to promote progress in the useful arts, and that the court has "no warrant to reject the rational judgment Congress made" (Golan v. Holder). – user248 Jul 6 '15 at 23:15
  • The Court's reasoning might have been sound if it were only the 1976 copyright statute that were being challenged, but the later retroactive of an additional 20 years beyond the extensions granted in the 1976 act would seem to fit the "hypothetical" precisely. Further, while I grant that the Court should grant Congress considerable room for judgment, I can't see how it could find that Congress made a legitimate rational judgment without finding that there existed a plausible mechanism by which the act would promote such progress. Further, the way the act is written, ... – supercat Jul 6 '15 at 23:31
  • ...even if works published after 1976 do enter into the public domain, it will likely be impossible to determine that for the majority of such works. If copyright rules don't change, and someone in the year 2136 finds a work labeled "Copyright 1976 John Smith", by what means could the ascertain whether the 150-year-old work had lapsed? Unless or until it could be shown that one of the John Smiths that died between 1976 and 2066 was the same John Smith that wrote the piece, it might still be under copyright 150 years later. – supercat Jul 6 '15 at 23:37
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First, this is a pretty broad question, but I will try to answer.

Briefly (from the wiki page):

All copyrightable works published in the United States before 1923 are in the public domain;[18] works created before 1978 but not published until recently may be protected until 2047.[19] For works that received their copyright before 1978, a renewal had to be filed in the work's 28th year with the Copyright Office for its term of protection to be extended. The need for renewal was eliminated by the Copyright Renewal Act of 1992, but works that had already entered the public domain by non-renewal did not regain copyright protection. Therefore, works published before 1964 that were not renewed are in the public domain.

Under very rare circumstances, one may regain copyright protection. However,

a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph.

... as determined by a US District Court.

With all that being said, there would be no change in the status of Shakespeare's works. (This would be more subject to the TRIPS than US law since Shakespeare is not from the US.)

Would works that lost copyright protection regain it? "Probably" Not. Your question asks for speculation about how the legislatures would change copyright law. If all that was changed was the length of the copyright, then no, they would not gain protection. However, if you can get congress to extend the copyright for 10k years, you can probably get them to allow owners to regain a lost copyright.

Derivative works have their own copyright on materials not subject to the copyright of the main material.

  • Since the US does not apply the rule of the shorter term, it is conceivable that Shakespeare could be in the public domain in the UK, but copyrighted in the US. Obviously that is not currently the case, but it could be if the right law were passed. – Kevin Jul 6 '15 at 18:34
  • Yea, I know. That's why I voted to close as too broad. – Andrew Jul 6 '15 at 18:36
  • It would be interesting to research who would own the Shakespeare copyright. Could we find a legitimate and provable heir? And what about the Bible? Who would own that? It would also fit into the 10k year interval. – vsz Jul 6 '15 at 20:58
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    @vsz Well, for the Bible, that is a compilation. The Catholic church would probably own one copyright on the compilation and the English Monarchy (if they can own copyrights? KJV would be compiled by that entity right?) would own another copyright on the compilation. re: phonebook case. Then each individual work would be copyright by its author, which is in dispute for nearly all books. Not to mention the translations. Many would be the RCC copyrights. As for Shakespeare, it would have gone to his estate, if estates existed at the time. (I think he would have missed by like 60 years.) – Andrew Jul 6 '15 at 21:15

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