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Public but Private: Copyright's New Unpublished Public Domain

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Public but Private: Copyright's New Unpublished Public Domain Public but Private: Copyright’s New Unpublished Public Domain R. Anthony Reese* I. The Legal Scope of the Unpublished Public Domain......................... 588 A. The End of Perpetual Copyright in Unpublished Works ................ 588 B. Why Grant Federal Protection to Unpublished Works? ................. 591 II. The Works in the Unpublished Public Domain .................................. 595 A. Private Works.................................................................................. 595 B. Preparatory Works .......................................................................... 598 C. Performed and Displayed Works .................................................... 600 III. Implications of Expanding the Public Domain to Unpublished Works ............................................................................................................ 603 A. Contracting Copyright Protection, Adding Material to the Public Domain and Reducing Clearance Costs.......................................... 603 B. The “Life-Plus” Term in Action ..................................................... 606 C. The United States as Pioneer of the Unpublished Public Domain.. 607 D. Altering the Publicness of the Public Domain ................................ 613 IV. Keeping Control of Unpublished Public Domain Works ................... 617 A. Controlling Initial Publication Through Access ............................. 617 1. Motivations for Control .............................................................. 617 2. Mechanisms of Control: Denying or Conditioning Access......... 621 3. Enforceability of Conditional Access Agreements...................... 623 4. Effectiveness of Conditional Access Agreements........................ 629 5. Promoting Dissemination Through Conditional Access Agreements .................................................................................................... 631 B. Controlling Use After Publication: A Publication Right?............... 633 1. The European Union’s Publication Right................................... 633 2. Congressional Power to Protect................................................. 635 3. Should A Publication Right Be Granted? ................................... 652 4. Disadvantages of Protection....................................................... 659 * Arnold, White & Durkee Professor, School of Law, The University of Texas at Austin; Visiting Professor, NYU School of Law, 2006–2007. Thanks to Paul Goldstein, Justin Hughes, Mark Lemley, Christopher Leslie, Margaret Jane Radin, Pamela Samuelson, Elizabeth Townsend Gard, and participants in faculty and student workshops at Stanford, Boalt Hall, the University of Arizona, Cardozo, Vanderbilt, and NYU law schools for helpful conversations and comments on this paper. Thanks also to Kurt Heinzelman, Executive Curator for Academic Programs at the Harry Ransom Humanities Research Center at The University of Texas at Austin for first inviting me to speak on this topic. 586 Texas Law Review [Vol. 85:585 5. Properly Limiting Any U.S. Publication Right. .......................... 661 V. Conclusion .......................................................................................... 663 January 2003, when the Supreme Court decided Eldred v. Ashcroft,1 has not generally been viewed as a good month for the public domain. By up- holding the constitutionality of the Sonny Bono Copyright Term Extension Act, the Court approved a 20-year delay in the entry into the public domain of everything published after 1922, and essentially validated a moratorium under which such works will not begin to enter the public domain until 2018. But January 2003 was also a very good month for the public domain. Two weeks before the Court’s decision, every unpublished work ever created by any author who died before 1933 entered the public domain.2 This was probably the largest single deposit of material into the public domain in history: every letter, journal, poem, short story, song, sketch, photograph, or painting that had never been publicly distributed and whose author died no later than 1932. This enormous influx of material into the public domain has received little notice,3 but it has significant implications for copyright law and practice. Much of the material is primarily of educational or historical interest, but some of it has commercial value as well, so archives, museums, scholars, students, publishers, film studios, and others will be affected. And allowing copyright in unpublished works to expire for the first time in our history fundamentally changes the nature of the public domain. Before 2003, the public domain encompassed works that were not only legally free for the public to use but that had also been made available to the public. Adding to the public domain works that have been kept private may change the legal regulation of the public domain. One possible change might be to grant a 1. 537 U.S. 186 (2003). 2. If the plaintiffs in Eldred had succeeded, even more material would have entered the public domain: every unpublished work by any author who died before 1953. 3. Many other aspects of the public domain have recently been the subject of sustained scholarly commentary. A very partial list of the most important work on various aspects of the public domain includes JAMES BOYLE, SHAMANS, SOFTWARE & SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY (1996); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354 (1999); David Lange, Recognizing the Public Domain, LAW & CONTEMP. PROBS., Autumn 1981, 147; Diane Leenheer Zimmerman, Is There a Right to Have Something to Say? One View of the Public Domain, 73 FORDHAM L. REV. 297 (2004); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Robert P. Merges, A New Dynamism in the Public Domain, 71 U. CHI. L. REV. 183 (2004); Tyler T. Ochoa, Origins and Meanings of the Public Domain, 28 U. DAYTON L. REV. 215 (2002); Pamela Samuelson, Mapping the Digital Public Domain: Threats and Opportunities, LAW & CONTEMP. PROBS., Winter/Spring 2003, 147; the articles collected in THE FUTURE OF THE PUBLIC DOMAIN: IDENTIFYING THE COMMONS IN INFORMATION LAW (Lucie Guibault & P. Bernt Hugenholtz eds., 2006); and Symposium, The Public Domain, LAW & CONTEMP. PROBS., Winter/Spring 2003, 1. For a more comprehensive overview of the public domain literature, see Pamela Samuelson, Enriching Discourse on Public Domains, 55 DUKE L.J. 783, 786–813 (2006) [hereinafter Samuelson, Enriching Discourse]. 2007] Public but Private 587 limited copyright-like right to the first person to publish an unpublished public domain work. The European Union (EU) has uniformly adopted such a right, which might give rise to a move to create one in the United States. This Article explores the creation and implications of the new public domain of unpublished material. Part I describes the evolution of copyright law governing unpublished works that led to the creation of the unpublished public domain in 2003. Part II then examines the kinds of works that make up the unpublished public domain, which fall into three categories: private works, works created as preparation for a published work, and works that have been performed or exhibited but not technically published under copy- right law. Next, Part III considers the implications of the changed legal regime for unpublished works. The new regime both represents one of the few ways in which copyright protection has contracted in recent years and places in the public domain an unprecedented amount of material at a time when virtually no other copyright is expiring. More fundamentally, the nature of the public domain has been significantly changed, by including for the first time a sub- stantial body of material that is legally unprotected by copyright but that has never been publicly disclosed. And the United States, it turns out, is some- thing of a pioneer among major copyright nations in ending copyright control over unpublished works. While some countries have followed this course, others have moved in the opposite direction and provided stronger copyright protection for long-unpublished works. Finally, Part IV contemplates ways in which the legal regulation of the public domain may change now that it includes unpublished material. Those who hold unpublished works, or who wish to publish them, may seek to con- trol publication of those works even after they enter the public domain. Owners of physical copies that embody such works—especially archives, which hold a large amount of older, unpublished material—may try to use that ownership to control the initial publication of those works. This Part considers the extent to which such owners may be able to do so. Finally, this Part examines the possibility that the United States might grant exclusive rights to the first person to publish an unpublished public domain work, as the European Union has done, and considers both whether the Constitution empowers Congress to grant such a right and whether such a right is neces- sary or desirable. One preliminary note on terminology is in order. Recent years have seen significant scholarly discussion over what precisely the term “public domain” includes or should include, as Pam Samuelson’s very helpful recent analytic survey of the field has demonstrated.4 In copyright law, some use the term to mean works in which copyright rights have expired—or never 4. See Samuelson, Enriching Discourse, supra note 3,
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