Many Early 20th Century US Medical Journals May Be in Public Domain
For those of us interested in writing about medical history, particularly early 20th-century medical history, a specific hurdle is encountered when attempting to quote, extract, or reprint text, figures, and photographs from early, relevant US medical journals—specifically those published between 1923 and 1963.* While the plea of “fair use” may be perfectly justified when using (and citing) brief excerpts from these articles in a scholarly (even for-profit) work, the issue of copyright protection and reprint permission can be a thorny one.
But a little online research suggests that many US medical journals published before 1950, even 1960, are in the public domain—including the preciously guarded journals of the AMA (eg, JAMA) and the Massachusetts Medical Society (ie, NEJM). While online access to remote back issues of these publications suggests that they remain copyrighted (even those published before 1923!), and both publishers charge not-inconsequential fees for downloading older articles, it appears that they should be freely and publicly available. (BTW, the Copyright Clearance Center is no help in this matter, at least not in my experience.)
The crux of maintaining copyright for these older issues was dependent on the 1909 copyright law, which was in effect at the time of anything published in the United States from 1923 to 1963. At the time of publication, copyright protection lasted for an automatic 28 years, at which time the copyright holder was obliged to renew the copyright (ultimately for another 67 years, thanks to subsequent copyright laws, for a total of 95 years). But many publishers, including apparently the AMA and the MMS, did not renew the copyright for their early 20th-century about-to-lapse issues. The answer as to whether they did or did not renew their copyright can be found by searching the online records of the US Copyright Office (here) and accessing links through the table here to digitized catalogs of US copyright records before January 1, 1978 (for instance, at archive.org).
As an example exercise to prove this point, let’s say I want to quote extensively from a 1937 article in JAMA, but I’m not sure if an extensive quote qualifies as “fair use,” and I’m not sure if the copyright for the article even remains in existence.** So I check the “1937 row” in the table here, which provides a link to copyright registrations, including the 28-year renewals, for 1965 (1937 + 28 = 1965). This drop-down link for “Periodicals” provides another link to the “Renewal Registrations” section of the digitized Catalog of Copyright Entries, 1965 (Periodicals Jan-Dec 3D Ser Vol 19 Pt 2) at archive.org. By scrolling through the section, it is readily apparent there is no entry for JAMA (or any possibly related entries). (It is also readily apparent how few periodicals, including medical journals, actually renewed their copyrights.) A search of surrounding years, 1964 and 1966, confirms the absence of JAMA in the copyright renewals section. Consequently it can be concluded with reasonable certainty that the copyright for JAMA issues of 1937 was not renewed and, therefore, automatically lapsed. These issues should therefore be in the public domain (although the online catalog warns that the catalog entries may not be complete).
So then the question becomes: When did the AMA and the MMS begin to renew the copyrights for the older issues of their journals? The answer is apparently found in the online copyright catalog. Renewals on copyrights for JAMA and many (possibly all) of the AMA’s related Archives issues were apparently not registered until 1988—meaning 28 years after the 1960 issues were published. Copyright renewals on the NEJM did not begin until the January 3, 1957, issue. Therefore it may well be that older issues of these renowned medical journals are actually in the public domain, and I would argue (unless I’m presented with compelling, contrary data) that they are. See my table, for examples of relevant data from the online copyright database.
|
US Journal |
Copyright |
Should Be |
|
New England |
Jan 3, 1957 |
Jan 3, 1957 |
|
AMA journals |
||
|
JAMA |
Jan 1960 |
Jan 1960 |
|
Archives of |
Jan 1960 |
Jan 1960 |
|
Archives of |
Jul 1960 |
Jul 1960 |
|
Archives of |
Jul 1960 |
Jul 1960 |
|
Archives of |
Jan 1960 |
Jan 1960 |
|
Archives of |
Jun 1960 |
Jun 1960 |
|
Archives of |
Jan 1960 |
Jan 1960 |
* Anything published before 1923 in the United States is public domain. And anything published after 1963 (save government works) is very likely to be copyrighted. See these excellent websites for reference: Public Domain Sherpa and US Catalog of Copyright Entries (Renewals).
** A major caveat. Some articles (although typically not medical articles) can remain under copyright independent of the journal in which they were originally published. However, this situation is more likely to be true for literature (eg, poetry, short stories) published in literature review periodicals.
A native East Tennessean, Barbara Martin is a formerly practicing, board-certified neurologist who received her BS (psychology, summa cum laude) and MD from Duke University before completing her postgraduate training (internship, residency, fellowship) at the Hospital of the University of Pennsylvania in Philadelphia. She has worked in academia, private practice, medical publishing, drug market research, and continuing medical education (CME). For the last 3 years, she has worked in a freelance capacity as a medical writer, analyst, and consultant. Follow Dr. Barbara Martin on Google + and Twitter.
