Tweet

Public Domain Day: January 1, 2014 — The Road NOT Taken

Public Domain Day is January 1st of every year. If you live in Canada, January 1st 2014 would be the day when the writings of Robert Frost, W.E.B. Du Bois, C.S. Lewis, Sylvia Plath, and even Aldous Huxley enter the public domain. "O Brave New World, that has such treasures in't!" In Europe, the works of Fats Waller, Nikola Tesla, Sergei Rachmaninoff, Elinor Glyn, and hundreds of others will emerge into the public domain¹ – where they are freely available for anyone to perform, translate, or republish. All of these public domain works can be freely digitized and archived, so that anyone can find and use them. Canadians can stage their own Chronicles of Narnia, and Europeans can set Tesla's autobiography to Rachmaninoff's most intricate passages, all without asking permission or violating the law.

On the first day of each year, Public Domain Day celebrates the moment when copyrights expire. The films, photos, books and symphonies whose copyright term has finished become, to quote Justice Louis Brandeis, “free as the air to common use.” The end of the copyright term on these works means that they enter the public domain, completing the copyright bargain. 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.

A new article, In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day, 2014 (12 Duke L. & Tech. Rev. 1) by Center Director Jennifer Jenkins reveals the promise and the limits of various attempts to reverse the erosion of the public domain.

What is entering the public domain in the United States? Not a single published work. Once again, we will have nothing to celebrate this January 1st because no published works are entering the public domain this year. Or next year. In fact, in the United States, no publication will enter the public domain until 2019.² 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 1943 would be freely available on January 1, 2014. 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 1957, whose arrival we might otherwise be expecting January 1, 2014, will not enter the public domain until 2053. 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.

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 1957 would be entering the public domain. They range from the books On The Road, Atlas Shrugged, and The Cat in the Hat, to the films the Bridge on the River Kwai and Funny Face, to the musical West Side Story and the songs All Shook Up and Great Balls of Fire. 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 1985 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 serves an important purpose in facilitating the creation and distribution of creative works. The basic principles of our copyright system are sound. But studies like the recent Hargreaves Review commissioned by the UK government, empirical comparisons of the availability of copyrighted works and public domain works and recent 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 law reform that would give greater access to orphan works. The US Copyright Office has renewed 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 a short article in the Huffington Post celebrating a previous Public Domain Day.

1 Canada's term is life plus 50 years, so the works of authors who died in 1963 will enter the public domain on January 1, 2014 (the beginning of the year after copyright expiration). The European Union has a term of life plus 70 years, meaning the works of authors who died in 1943 go into the public domain in 2014. However, it is often very hard to determine if a particular work is in the public domain. The European list of public domain works to which we link is based on the assumption that the named author is the copyright holder and that the term is life plus seventy years.

2 No published works will enter the United States public domain until 2019. However, a subset of works – unpublished works that were created by authors who died in 1943 and were not registered with the Copyright Office before 1978 – will be entering the public domain this year. But, because these works were never published, potential users are much less likely to encounter them. In addition, it is difficult to determine whether works were “published” for copyright purposes. Therefore, this site focuses on the millions of published works that will not be entering the public domain.

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

Public Domain Day 2014 by Duke Law School by Duke Law School Center for the Study of the Public Domain is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.