What Could Have Entered the Public Domain on January 1, 2013?

What Could Have Entered the Public Domain on January 1, 2013?

Under the law that existed until 1978 … Works from 1956

Works that could have entered the public domain on January 1, 2013

The films Godzilla, King of the Monsters!, The Best Things in Life Are Free, Forbidden Planet, The Ten Commandments, and Around the World in 80 Days, the stories 101 Dalmatians and The Minority Report, classic Elvis Presley songs, and more …

The Best Things in Life are NOT Free

Current US law extends copyright for 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years – an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1956 would enter the public domain on January 1, 2013, where they would be “free as the air to common use.” Under current copyright law, we’ll have to wait until 2052.1 And no published works will enter our public domain until 2019. (The law in the EU is different – thousands of works from authors who died in 1942 are entering their public domain on January 1.) Even more shockingly, the Supreme Court ruled in 2012 that Congress can take back works from the public domain. Could Shakespeare, Plato, or Mozart be pulled back into copyright? The Supreme Court gave no reason to think that they could not be.

A Copyrighted History of the English-Speaking Peoples

What books would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.

The Minority Report in EldredYou would be free to translate these books into other languages, create Braille or audio versions for visually impaired readers (if you think that publishers wouldn’t object to this, you would be wrong), or adapt them for film. You could read them online or buy cheaper print editions, because others were free to republish them. (Empirical studies have shown that public domain books are less expensive, available in more editions, and more likely to be in print.) Imagine a digital Library of Alexandria containing all of the world’s books from 1956 and earlier, where, thanks to technology, you can search, link, index, annotate, copy and paste. Not so fast … instead of seeing these works enter the public domain in 2013, we will have to wait until 2052.

The same is true for some of the great periodicals from 1956. These include the first issue of MAD magazine with Alfred E. Neuman prominently featured on the cover, as well as the debut issues of New Scientist, teen magazines such as Walt Disney’s Mickey Mouse Club Magazine, and the short-lived science fiction magazines Satellite, Science Fiction Adventures, and Super Science Fiction.

Around the World in 34,699* Days

Think about the movies from 1956 that would have become available this year. Fans could share clips with friends or incorporate them into fantastic homages. (There are certainly some good candidates.) Local theaters could show the full features. Libraries and archivists would be free to digitize and preserve them. Indeed, movies such as Forbidden Planet (based on Shakespeare's The Tempest), Around the World in 80 Days (based on the Jules Verne novel of the same name), and Moby Dick (based on the Melville classic) depended on underlying works that were in the public domain. Here are a few of the movies that we won’t see in the public domain for another 39 years.

These films are famous, so we’re not likely to lose them entirely – the true tragedy is that of forgotten films that are literally disintegrating while preservationists wait for their copyright terms to expire.

Let the Good Times Roll … in 2052

What 1956 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely record your own version of some of the influential music of the 1950s, January 1, 2013, might have been a booming day for you under earlier copyright laws – Let the Good Times Roll, Roll Over Beethoven, Who Do You Love, Long Tall Sally, Fever, and In the Still of the Night would all be available. You could score a short film with I Walk The Line and Que Sera, Sera. Or you could stage your own performances of some of Elvis Presley’s hits: Heartbreak Hotel, Don't Be Cruel, Love Me Tender (written to the tune of the Civil War song "Aura Lea"). Today, these songs remain copyrighted until 2052.2

1956 Science – research on Artificial Intelligence, the effects of LSD on “normals,” and the origin of cancer cells – still behind paywalls

1956 was an exciting year for science – it marked the publication of seminal research in the nascent fields of cognitive science and artificial intelligence. But you may have to pay to see articles such as Allen Newell & Herbert Simon, “The Logic Theory Machine–A Complex Information Processing System” and Noam Chomsky, “Three Models for the Description of Language” in IRE Transactions on Information Theory, or George Miller’s “The magical number seven, plus or minus two: Some limits on our capacity for processing information” in Psychological Review. (Happily, these articles are available on other sites – Google them if you’re interested, they’re worth reading – but as we explain below, this is not a stable solution for providing meaningful access to science, and it’s remarkable to find them still behind publisher paywalls.)

My Fair Lady - What Become of the Public DomainWhat about discoveries reported 56 years ago in major scientific journals such as Science, Nature, or JAMA? You can’t read the full text on the publisher's site unless you pay or subscribe – see, for example, Dr. Otto Warburg’s “On the Origin of Cancer Cells” (Science), Australian researcher Wesley Whitten’s report about in vitro development of a mouse ova to blastocyst stage (Nature), or 1950s LSD research “Model Psychoses Induced by LSD-25 in Normals” (the JAMA network). The same is true for other noteworthy developments from 1956, such as Kenneth Boulding’s “General Systems Theory – the Skeleton of Science,” Dr. Denham Harman’s “Aging: a theory based on free radical and radiation chemistry,” and the inaugural volume of the Journal of Psychosomatic Research.

Sometimes articles are made available, but out of altruism or renewed interest, not entitlement to a scientific public domain. A prescient article on climate change by Gilbert N. Plass, “Carbon Dioxide and the Climate” is available only for payment in pdf form but because of its continuing relevance was reprinted for free in html.

While these articles are not freely available from their publishers, many are made available by third parties, some of whom might be amazed to find that these works are still copyrighted. But relying on third parties to post copyrighted research doesn’t provide reliable access – postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit.

Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts. Now, to get these articles from the publisher, you need a credit card or institutional subscription. And the institutional access that many top scientists enjoy is itself not a stable solution – even institutions such as Harvard are considering canceling their subscriptions because they can no longer afford the escalating prices of major journal subscriptions.

Not all scientific publishers work under this kind of copyright scheme. “Open Access” scientific publications, like those of the Public Library of Science, are under Creative Commons attribution licenses, meaning that they can be copied freely from the day they are published.

Works from … 1984

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Most of the works highlighted here are famous – that is why we included them. And if that fame meant that the work was still being exploited commercially 28 years after its publication, the rights holders would probably renew the copyright. (This is true for many of the works featured on this page, though even the shorter copyright term exceeds the commercial lifespan of a surprising percentage of successful works.) But we know from the Copyright Office that 85% of authors did not renew their copyrights (for books, the number is even higher – 93% did not renew), since most works exhaust their commercial value very quickly.

Under the law that existed until 1978 … Up to 85% of all copyrighted works from 1984 might have been entering the public domain on January 1, 2013.

That means that all these examples from 1956 are only the tip of the iceberg. If the pre-1978 law were still in effect, we could have seen 85% of the works created in 1984 enter the public domain on January 1, 2013. Imagine what that would mean to our archives, our libraries, our schools and our culture. Such works could be digitized, preserved, and made available for education, for research, for future creators. Instead, they will remain under copyright for decades to come, perhaps even into the next century.

Perhaps the most troubling aspect of the current copyright term is that in most cases, the cultural harm is not offset by any benefit to an author or rights holder. Unlike the famous works highlighted here, the vast majority of works from 1956 do not retain commercial value.3 This means that no one is benefiting from continued copyright, while the works remain both commercially unavailable and culturally off limits. The public loses the possibility of meaningful access for no good reason.

You can read more about the current costs associated with orphan works – works that are still presumably under copyright, but with no identifiable copyright holder – here and here. Importantly, the US Copyright Office has renewed its efforts to find solutions to the orphan works problem – comments on “the current state of play for orphan works” are due on February 4, 2013.

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* 95 years, give or take a leap year

1 The copyright term for works published between 1950 and 1963 was extended to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed (which is generally the case with famous works such as those we are highlighting).
  Many works published in 1956 are already in the public domain because the copyright holder did not comply with notice, renewal, or other copyright formalities. However, tracking down this information can be difficult (you can read just one of many illustrative examples collected by the Copyright Office here). Therefore, users often have to presume these works are copyrighted or risk a lawsuit (only works published before 1923 are conclusively in the public domain). You can read more about copyright terms from this excellent chart and from the US Copyright Office’s guide.
  It is also difficult to determine whether foreign works are in the public domain in the U.S. Generally speaking, as a result of international agreements, foreign works published after 1923 are still under copyright in the US as long as one of the following is true: they were published in compliance with US formalities, they were still copyrighted in their home countries as of 1996, or they were then published in the US within 30 days of publication abroad. You can learn more about copyright terms for foreign works from the Copyright Office guide here.

2 Under the law at the time, these “musical compositions” – the music and lyrics – were subject to copyright, but the particular “sound recordings” embodying the musical compositions were not; federal copyright did not cover sound recordings until 1972. So, for example, the musical composition “Que Sera, Sera” written by Jay Livingston and Ray Evans was copyrighted, but not Doris Day’s particular sound recording of that composition.

3 A Congressional Research Service study found that only 2% of works between 55 and 75 years old continue to retain commercial value.

Creative Commons LicenseThe Public Domain Day 2013 web pages by Duke University's Center for the Study of the Public Domain are licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.