A typical copyright infringer is an individual copying something for their own use or an artist taking a bit too much inspiration from somebody else’s work. By contrast, a typical patent infringer is a big corporation. The typical copyright holder (for valuable copyrights) is a big corporation. It should come as no surprise, given that big companies have lobbyists and individuals do not, that copyright terms have become, for all intents and purposes, permanent for works created today, while at the same time, patent terms have remained short (and patents have been weakened, but that’s a different article).
1. Utility Patent Terms
1.1 Early Patent Term History (1790–1836)
- 1790 Patent Act: The first U.S. patent statute provided a term of up to 14 years if approved by a special board (which included Thomas Jefferson).
- 1793 Act: Consolidated procedures but maintained a maximum term of 14 years.
1.2 Mid-19th Century to 1994
- 1836 Patent Act: Extended the base term to 14 years with the possibility of a 7-year extension upon application.
- 1861 Act: Established a patent term of 17 years from the date of issuance, eliminating the extension procedure. This 17-year-from-issuance system became the standard for well over a century.
1.3 Modern Patent Term (Post-1995)
- Uruguay Round Agreements Act (URAA) of 1994:
- Changed the standard term for utility patents to 20 years from the earliest U.S. filing date (rather than 17 years from issuance).
- This took effect for applications filed on or after June 8, 1995.
- Patent Term Adjustments (PTA):
- The U.S. Patent and Trademark Office (USPTO) may add or subtract time based on certain prosecution delays.
- If the USPTO exceeds certain time limits in examination, the patent term may be extended. Conversely, if the applicant causes delays, the term can be shortened.
1.4 Key Takeaways for Utility Patents
- Current Rule: Generally 20 years from the earliest U.S. nonprovisional filing date.
- Exceptions: Term can be adjusted (extended or reduced) based on examination delays, and certain pharmaceutical patents can receive term extensions under the Hatch-Waxman Act.
2. Design Patent Terms
2.1 Early Design Patent Act (1842)
- The first design patent law dates back to 1842, giving a 7-year term from issuance for designs on “manufactures.” Over time, the term changed a few times.
2.2 Twentieth Century to 2015
- For many decades, 14 years from the date of issuance was the standard design patent term in the U.S.
2.3 Current Design Patent Term
- Design Patent Term Extension:
- The Patent Law Treaties Implementation Act of 2012 brought the U.S. design patent system into alignment with international treaties such as the Hague Agreement.
- For design patent applications filed on or after May 13, 2015, the term is 15 years from the date of patent issuance.
- For design patent applications filed before May 13, 2015, the term remains 14 years from issuance.
2.4 Key Takeaways for Design Patents
- Pre-May 13, 2015 Filings: 14-year term from issuance.
- On or After May 13, 2015: 15-year term from issuance.
3. Copyright Terms
Copyright law in the United States has evolved significantly since the first Copyright Act of 1790. Over time, the term of protection has been extended to accommodate changing views on authors’ rights, publishing practices, and international treaties.
3.1 Early Copyright Acts (1790–1909)
- 1790 Act: Provided an initial term of 14 years, renewable for another 14 years if the author was still alive at the end of the first term.
- 1831 Revision: Extended the initial term to 28 years, with a 14-year renewal (28 + 14).
- 1909 Act: Maintained a 28-year initial term but extended the renewal term to 28 years (28 + 28).
3.2 1976 Copyright Act and Subsequent Amendments
- 1976 Act: Fundamental shift from the old “formalities-based” system to one where copyright attaches automatically upon creation. Key changes included:
- For works created on or after January 1, 1978: A term of life of the author + 50 years (at that time).
- Works still protected under the previous system (published before 1978) were transitioned into the new scheme, often leading to complex transitional rules.
- Sonny Bono Copyright Term Extension Act (CTEA) of 1998:
- Extended the basic term to life of the author + 70 years for works created by an individual author after 1977.
- For “works made for hire,” anonymous, or pseudonymous works, the term became 95 years from publication or 120 years from creation, whichever expires first.
3.3 Current Copyright Terms (General Rules)
- Works by Individual Authors Created on or After January 1, 1978
- Life of the author + 70 years.
- Works Made for Hire, Anonymous, or Pseudonymous Works
- 95 years from first publication OR 120 years from creation, whichever ends sooner.
- Older Works (Published Before 1978)
- These can still be protected for up to 95 years from publication (if proper renewals and formalities were met under the old law, or were automatically extended under subsequent acts).
- The details of each publication date matter, and some works have fallen into the public domain if deadlines or renewal requirements were not satisfied.
4. Determining if a Copyright Is Still in Force in the US
Figuring out whether a given work remains under copyright can be tricky, especially for works published before 1978. Below is a simplified checklist:
- Date of Creation / Publication
- If the work was created or first published after January 1, 1978, it’s likely still under copyright unless the author died more than 70 years ago (or 95 years have passed since publication if it’s a work made for hire or anonymous/pseudonymous).
- If the work was published before 1928 (i.e., anything published in the U.S. before January 1, 1928), it is generally in the public domain as of 2023 and beyond.
- Author’s Date of Death
- For works by identified individual authors, copyright generally extends 70 years after the author’s death if created post-1977.
- If you can find the author’s year of death, you can do a life + 70 calculation.
- Work Made for Hire / Corporate Authorship
- If the copyright claimant is a corporation, organization, or other legal entity, the term might be 95 years from publication or 120 years from creation.
- Check for actual publication dates and the official records.
- Look for Renewal Records (Pre-1978 Works)
- Under the 1909 Act, a failure to renew could cause the work to enter public domain.
- However, the Copyright Renewal Act of 1992 and other amendments automatically renewed many works published from 1964 onward. For works published before 1964, you may still need to verify whether a renewal was timely filed.
- Consult Copyright Office Records
- The U.S. Copyright Office maintains registration and renewal records. A search there (or in official databases) is often the best way to confirm a specific work’s status.
5. Conclusion
The evolution of intellectual property terms in the United States reflects changing attitudes toward innovation, creativity, and public access. Utility patent terms shifted from 17 years from grant to 20 years from the earliest filing date, design patents moved from 14 to 15 years (post-2015), and copyright extended from an original 14+14 model to life+70 (or 95/120 for certain categories). Determining a work’s current copyright status can require careful analysis of creation dates, publication dates, and, in some cases, detailed renewal or registration records.