Common Law Copyright and the Archivist

Abstract

literary creation before publication. As such, this concept also is called the right of first publication or common law copyright. A written expression need not possess literary merit to warrant such protection. Furthermore, literary property, an intangible quality which is distinct from physical possession, does not end with the death of the author, but it exists in perpetuity until the unpublished writing is published or otherwise placed in the public domain. Common law copyright differs radically from statutory copyright, which governs published works protected under the Copyright Act. Difficult to grasp as a concept, common law copyright is complicated by legal interpretations of publication, photocopying policy, donor relations, and the privacy issue. Archivists necessarily must deal with common law copyright problems in administering unpublished writings, and they may wait years more for the salutary effect on these problems of the proposed revision of the copyright law. Letters or other writings of a donor's correspondents pose a particularly vexing problem. While a donor (or his heirs or assigns) holds literary property rights in his own writings, he has no control over literary property in a correspondent's writings even though these writings may constitute a substantial part of his papers. This discussion recognizes problems inherent in this situation, but it does not attempt to resolve them. When a donor gives his papers to a repository, he parts with physical possession of them. He retains literary property in his unpublished writings, however, unless he expressly transfers it.