Tweet

Public Domain Day: January 1, 2018

Public Domain Day is January 1st of every year. If you live in Canada or New Zealand, January 1st 2018 would be the day when the works of René Magritte, Langston Hughes, Dorothy Parker, Jean Toomer, Edward Hopper, and Alice B. Toklas enter the public domain.1 So would the musical compositions of John Coltrane, Billy Strayhorn, Paul Whiteman, Otis Redding, and Woody Guthrie. Canadians can now add a wealth of books, poems, paintings, and musical works by these authors to online archives, without asking permission or violating the law. And in Europe, the works of Hugh Lofting (the Doctor DoLittle books), William Moulton Marston (creator of Wonder Woman!), and Emma Orczy (the Scarlet Pimpernel series) will emerge into the public domain, where anyone can use them in their own books or movies. (You can find a great celebration of some of these authors here.)



Is “This Land Is Your Land” in the public domain? It's complicated, and there's a pending lawsuit on the subject— Is “This Land Is Your Land” in the public domain? It's complicated, and there's a pending lawsuit on the subject— you can read more about it here

What is entering the public domain in the United States? Not a single published work. Once again, no published works are entering our public domain this year.2 (Happily, works published in 1923 will finally begin to enter our public domain next year.) The only works that are clearly in the US public domain now are those published before 1923. But what about works published after that date? Does that mean that they’re still under copyright? Well, maybe. Citizens of the United States have to live with a frustrating lack of clarity about what older works they can use. Did the author comply with registration or renewal requirements when those were mandatory?3 The records are fragmentary and confused, the copyright holders hard to find. Perhaps some post-1923 works by the authors above are in the public domain. Perhaps they are still copyrighted. We have to live in a fog of uncertainty, uncertainty that benefits no one. By contrast, in Canada and the EU, the public will know on January 1 that all works by these authors are in the public domain.

When the first copyright law was written in the United States, copyright lasted 14 years, renewable for another 14 years if the author wished. Jefferson or Madison could look at the books written by their contemporaries and confidently expect them to be in the public domain within a decade or two. Now? In the United States, as in much of the world, copyright lasts for the author’s lifetime, plus another 70 years. You might think, therefore, that works whose authors died in 1947 would be freely available on January 1, 2018. Sadly, no. When Congress changed the law, it applied the term extension retrospectively to existing works, and gave all in-copyright works published between 1923 and 1977 a term of 95 years. The result? None of those works will enter the public domain until 2019, and works from 1961, whose arrival we might otherwise be expecting January 1, 2018, will not enter the public domain until 2057. In addition to lengthening the term, Congress also changed the law so that every creative work is automatically copyrighted, even if the author does nothing.

What do these laws mean to you? As you can read in our analysis here, they impose great (and in many cases unnecessary) costs on creativity, on libraries and archives, on education and on scholarship. More broadly, they impose costs on our collective culture. We have little reason to celebrate on Public Domain Day because our public domain has been shrinking, not growing.

It’s a Wonderful Public Domain….. What happens when works enter the public domain? Sometimes, wonderful things. The 1947 film It’s A Wonderful Life entered the public domain in 1975 because its copyright was not properly renewed after the first 28-year term. The film had been a flop on release, but thanks to its public domain status, it became a holiday classic. Why? Because TV networks were free to show it over and over again during the holidays, making the film immensely popular. But then copyright law reentered the picture…. In 1993, the film’s original copyright holder, capitalizing on a recent Supreme Court case, reasserted copyright based on its ownership of the film’s musical score and the short story on which the film was based (the film itself is still in the public domain). Ironically, a film that only became a success because of its public domain status was pulled back into copyright.

What Could Have Been

It didn’t have to be this way. As you can read in our analysis of the subject, if we had the laws that were in effect until 1978, thousands of works from 1961 would be entering the public domain. They range from the books Catch-22, Stranger in a Strange Land, and The Phantom Tollbooth to the films Breakfast at Tiffany’s and West Side Story, and much more. Have a look at some of the others. In fact, since copyright used to come in renewable terms of 28 years, and 85% of authors did not renew, 85% of the works from 1989 might be entering the public domain! Imagine what the great libraries of the world – or just internet hobbyists – could do: digitizing those holdings, making them available for education and research, for pleasure and for creative reuse.

For the works that are still commercially available, the shrinking public domain increases costs to citizens and limits creative reuse. But at least those works are available. Unfortunately, much of our cultural heritage, perhaps the majority of the culture of the last 80 years, consists of orphan works. These are works that have no identifiable or locatable copyright holder. Though no one is benefiting from the copyright, they are unavailable: it is presumptively illegal to copy, redistribute, or publicly perform them.

…And What Can Be Done About It

Does all this mean that copyright is a bad system? Of course not. Copyright gives creators – authors, musicians, filmmakers, photographers – exclusive rights over their works for a limited time. This encourages creators to create and publishers to distribute – that’s a very good thing. But when the copyright ends, the work enters the public domain – to join the plays of Shakespeare, the music of Mozart, the books of Dickens – the material of our collective culture. That’s a good thing too! It’s the second part of the copyright bargain; the limited period of exclusive rights ends and the work enters the realm of free culture. Prices fall, new editions come out, songs can be sung, symphonies performed, movies displayed. Even better, people can legally build on what came before.

The basic principles of our copyright system are sound. But there is a consensus among academics, economists, and policymakers — including two heads of the United States Copyright Office — that the longer term is a “big mistake.” Why? Because its benefits are minuscule — economists (including five Nobel laureates) have shown that term extension does not spur additional creativity. At the same time, it causes enormous harm, locking away millions of older works that are no longer generating any revenue for the copyright holders. Films are literally disintegrating because preservationists can’t digitize them. The works of historians and journalists are incomplete. Artists find their cultural heritage off limits. Studies like the Hargreaves Review commissioned by the UK government, empirical comparisons of the availability of copyrighted works and public domain works and economic studies of the effects of copyright (other articles are here and here) all suggest that lengthy copyright extensions impose costs that far outweigh their benefits. In fact, economists who have modeled the ideal copyright term have uniformly suggested that it should be far shorter than it is right now. Some have suggested that it should be as short as 15 years. And every economic study has concluded that if there are to be copyright term extensions, they should not be retroactive.

What can be done about all this? One obvious first step is legal reform that would give greater access to orphan works. The US Copyright Office has continued its efforts to find solutions to the orphan works problem. Authors and creators can also choose to license their work under more generous terms than standard copyright through Creative Commons licenses (for works like books, movies, music and art) or free and open source licenses for software. These open licenses create a privately constructed commons in which all can share freely. Fundamentally, though, the key is public education about the delicate balance between intellectual property and the public domain. That is the goal of our Center.

You can learn even more about the public domain by reading our Frequently Asked Questions page, and from scholarly literature on the subject, including David Lange’s seminal 1981 article “Recognizing the Public Domain” and James Boyle’s book The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008). Naturally, you can read the full text of The Public Domain online at no cost and you are free to copy and redistribute it for non-commercial purposes. You can also read In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day, an article by Center Director Jennifer Jenkins revealing the promise and the limits of various attempts to reverse the erosion of the public domain, and a short article in the Huffington Post celebrating a previous Public Domain Day.

Special thanks to our tireless and talented research maven and website guru Balfour Smith.

Public Domain Day 2018 by Duke Law School's Center for the Study of the Public Domain is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.