The Incredible Shrinking Public Domain

Shrinking Public DomainShrinking Public DomainShrinking Public Domain

The public domain — the wellspring of material that everyone is free to use and build upon — has been steadily shrinking. (You can read about uses of the public domain by artists, corporations, libraries, archivists, database creators, educators, and scholars here.)


The Blob: The copyright term grows to unrecognizable proportions, gobbling up the public domain...When Congress passed the first copyright law in 1790, the copyright term lasted for 14 years, with the option to renew for another 14 years if the copyright holder was still living. Before 1978, the copyright term was still 28 years from the date of publication, renewable once for another 28 years — but 85% of copyrights were not renewed and went immediately into the public domain. Under the 1976 Copyright Act, which went into effect in 1978, the term became 50 years from the date of the author’s death (with no need to renew to have the full term). And in 1998, the copyright term was increased to 70 years after the death of the author, and to 95 years after publication for corporate “works-for-hire”, locking up an entire generation of works for an additional 20 years. With these and interim extensions, the copyright term has been extended eleven times in the past fifty years.

A Thin Layer of Intellectual Property Protection

Let’s assume for the sake of illustration that on average, an author creates a work at age forty and lives until age seventy, making the “life” part of the copyright term thirty years from the date of creation. Using this assumption, these extensions of the copyright term can be depicted in the following manner:

Changes in Copyright Term Chart

Each extension represents a winnowing of the public domain.


The Day the Earth Stood Still: Retroactive term extension means NO published works will enter the public domain until 2019
The 1998 term extension — which increased the copyright term to life plus 70 years and 95 years for corporate authors — was not only granted to future works. It was retroactively applied to works that had already been created and enjoyed their full copyright term, and were set to enter the public domain. None of these works will enter the public domain until 2019. The already diminished public domain has been frozen in time.


The Copyright Trilogy: Eliminating the notice requirement compounds the effects of term extension and retroactive applicationIn addition to extending the copyright term, recent laws eliminated the requirement that authors “opt in” to copyright protection by affixing a basic copyright notice — the word “copyright” or © with a name and year next to it. This change took effect in 1989, and copyright now adheres the moment a work is fixed, whether or not the author wants to protect or sell the work, with no easy way to "opt out" — think of all the amateur videos, travel photos, blog postings, witty musings, jam sessions, or useful tidbits that people want to freely share and don’t intend to commercialize. Estimates are that under the opt-in system perhaps only 10% of works included a copyright notice; the remaining 90% went immediately into the public domain. Compare that to today, when 100% of works automatically have life plus 70 years or 95 years of protection and are off limits to artists, educators, archivists, remixers, scholars, and everyone else who might want to freely use them. As a result, the chart above only shows part of the story — the shrinking of the public domain has been exponential.


Forbidden Planet: Orphan works in legal limboThe exceptionally long copyright term has also created a growing limbo of “orphan works.” These works are still presumably under copyright (only works published before 1923 are conclusively in the public domain), but they are commercially unavailable and the copyright owner cannot be found (tracking down the copyright holders of older works is often impossible — read accounts of thwarted efforts to do so here). Orphan works comprise much of the record of 20th century culture — studies have found that only 2 percent of works between 55 and 75 years old continue to retain commercial value. For the other 98% of works, no one benefits from continued copyright protection, while the entire public loses the ability to adapt, transform, preserve, digitize, republish, and otherwise make new and valuable uses of these forgotten works. Read more about the current costs associated with orphan works here and here.


When Worlds Collide: The irony of a shrinking public domain in the digital age

This steady erosion of the public domain is happening just as the Internet and digital technologies offer unprecedented opportunities to find, share, catalog, preserve, and remix its riches — foreclosing its enormous potential to feed creativity, innovation, democratic participation, and knowledge advancement.


NOTE: In recent years, the public domain has been diminished in many ways. Most relevant to Public Domain Day are the changes described above, but other expansions of intellectual property law have also contracted the public domain. These include changes in the subject matter covered by intellectual property (for example, patent protection has been extended to gene sequences and common business methods) and in the activities regulated (for example, the Digital Millennium Copyright Act backs technical controls that curtail personal, non-commercial, and traditionally “fair” uses of digital content). To learn more about these developments, see Professor James Boyle’s The Public Domain, available for free online here.



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