Public Domain Day - January 1, 2012
Public Domain Day: January 1, 2012 — The (Life Plus) Seventy Year Itch . . .
Public Domain Day is January 1st of every year. If you live in Europe, January 1st 2012 would be the day when the works of Louis Brandeis, James Joyce, Virginia Woolf, and hundreds of others ranging from James Frazer to El Lissitzky to Rabindranath Tagore emerge into the public domain1 — where they are freely available for anyone to use, republish, translate or transform. You could copy, share, or make a digital library of their articles and books. Your school could create an interactive volume of El Lissitzky’s designs, or publish that cheap educational edition of Woolf’s Mrs Dalloway. You could translate Joyce’s Ulysses into other languages, produce a multimedia annotation for his novel Finnegan’s Wake, or even make a new film based on his collected works. Or you could just send a copy to a friend — without asking permission or violating the law. To quote Justice Brandeis:
“[T]he noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use.”
On the first day of each year, Public Domain Day celebrates the moment when copyrights expire. (You can read more about Public Domain Day around the world at Communia’s excellent site.) The films, photos, books and symphonies whose copyright term has finished become “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.
“We are the first generation to deny our own culture to ourselves. Almost no work created during your lifetime will, without conscious action by its creator, become available for you to reproduce or build upon.”
What is entering the public domain in the United States? Nothing. Once again, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year. Or next year, or the year after that. In fact, in the United States, no publication will enter the public domain until 2019. And wherever in the world you live, you will likely have to wait a very long time for anything to reach 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 most of the world, copyright lasts for the author’s lifetime, plus another 70 years. And we’ve 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 entirely unnecessary) costs on creativity, on libraries and archives, on education and on scholarship. More broadly, they impose costs on our entire collective culture.
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 1955 would be entering the public domain. They range from Isaac Asimov’s The End of Eternity and Rudolf Flesch’s Why Johnny Can’t Read: And What You Can Do About It, to the iconic movie Rebel Without a Cause, The Seven Year Itch featuring Marilyn Monroe, and Hitchcock’s To Catch A Thief. 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 1983 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. If we did not go back that far, but merely went back to the copyright law as it was before 1998, we would be getting works 50 years after the death of the author.
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. They are not sold anywhere and they have no identifiable copyright holder. Though no one is benefiting from the copyright, they are unavailable: it is presumptively illegal to copy, redistribute, or publicly perform them.
Why Johnny Can’t Read New Public Domain Books . . . 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 protection 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 14 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. 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, from David Lange’s seminal 1981 article “Recognizing the Public Domain” or from 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.
1 One additional problem is that it is often very hard to determine if a particular work is in the public domain. The Communia 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.
Special thanks to our tireless and talented research maven and website guru Balfour Smith.
The Public Domain Day 2012 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.