The Incredible Shrinking Public Domain
The public domain — the wellspring of material that everyone is free to use and build upon — has been shrinking. However, the law in this area is evolving: read updates about Google Books, Sherlock Holmes, and more here. (You can read about uses of the public domain by artists, corporations, libraries, archivists, database creators, educators, and scholars here.)
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.
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 are depicted in the chart to the right. Each extension represents a winnowing of the public domain.
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.
In 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.
The exceptionally long copyright term has also created a growing limbo of “orphan works.” These works are still presumably under copyright (only works published with authorization before 1923 are conclusively in the public domain), but the copyright owner cannot be identified or 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.
In the words of the US Copyright Office, “For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. . . This outcome is difficult if not impossible to reconcile with the objectives of the copyright system and may unduly restrict access to millions of works that might otherwise be available to the public.” So far, the US has failed to enact orphan works reform. However, in 2012, the European Union passed limited orphan works legislation – its new Directive allows qualifying public institutions (such as libraries and museums) to digitize the orphan works in their collections and make them available to the public.
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.
December 23, 2013 - Are Sherlock Holmes and “Happy Birthday” in the public domain? Yes!... And, Maybe
In 2013, two lawsuits were filed seeking to establish that especially famous pieces of culture – the original characters of Sherlock Holmes and Dr. Watson, and the song “Happy Birthday to You” – are actually in the public domain, even though they have continued to generate substantial licensing fees. (As discussed on this website, it is often difficult to determine whether works are in the public domain, so users have to presume that they’re copyrighted.)
On December 23, 2013, a court held that Holmes and Watson are, in fact, free for all to build upon. The characters were first introduced in 1887, and featured in fifty stories that were published before 1923 and are therefore in the public domain. The court confirmed that all of the material within those stories is “free for public use.” In the court’s words: “It is a bedrock principle of copyright that once work enters the public domain it cannot be appropriated as private (intellectual) property.”
Warner/Chappell Music claims copyright in “Happy Birthday to You” until 2030, and collects an estimated $2 million in annual licensing fees. However, their copyright appears to have multiple defects, and if anything, to cover only musical elements specific to 1935 piano arrangements of the song, not the familiar “Happy Birthday” melody and lyrics. As of December 29, 2013 this case is still pending.
This web page describes how expansions of the copyright term have eroded the public domain. Even as the public domain is shrinking, however, there are growing efforts underway to secure its promise of access our cultural heritage. One of these is Google Books.
In 2004, Google began an ambitious project – building a search engine for books. To do this, it could not simply use bots to crawl and index existing material. It needed the actual books – millions of them, hidden in the bowels of libraries. So it made a deal with libraries around the country, and started scanning their works. Many of these books were copyrighted. (The copyright term covers books published as far back as 1923.) Google did not get permission to scan them because it would have made the project impossible. Of the millions of copyrighted books, most were out of print, and many did not have locatable rights holders. For those works, Google couldn’t get permission, because there was no one to ask.
You’ve probably used Google Books. You type in search terms, and it returns a list of books where they appear. If the book is in the public domain, you can see the whole book. If the copyright owner has a partnership agreement with Google, then you can see whatever pages the agreement allows. Potential copyright issues only stem from a third category – in-copyright books where there is no agreement. For those books, Google only shows three short snippets with your search terms highlighted. In addition, there is no advertising, and an “About the Book” page provides links to booksellers and libraries where the book can be obtained.
In 2005, Google was sued for copyright infringement. In November 2013, a court decided that Google Books was protected by “fair use” – the doctrine in copyright law that, broadly speaking, protects beneficial uses that do not displace copyright holders’ markets. The court found that Google’s use of copyrighted books was legal because it was “highly transformative”: it transformed the expressive text within books into something different, a new search tool. The court also emphasized the “significant public benefits” of Google Books. For the first time, people could find books that were “once buried in research library archives.” Beyond finding books, the “n-gram” project let researchers text-mine the full corpus of digitized books to track the evolution of words and phrases. Google Books allowed libraries to better serve their functions: they could use the digital scans to facilitate access for print-disabled patrons, and to preserve their holdings for perpetuity. Authors and publishers themselves benefited too: they gained new audiences and revenue streams from the people who were finally able to find their books. All of these benefits – widespread access, research, preservation, new markets – are just what copyright law is intended to promote.
The Sherlock Holmes decision confirmed that material was in the public domain, and the “Happy Birthday” case might do the same. However, the process can and has gone in the other direction. In the 2012 case Golan v. Holder, the Supreme Court held that Congress can remove works from the public domain without violating the Constitution. Even if the public now enjoys unfettered access to a work, Congress is allowed to take that work out of the public domain and create a new legal monopoly over it. What’s more, the Court declared, Congress can do so even when it is clear that the new right “does not encourage anyone to produce a single new work.”
If one reads Golan, one searches in vain for any limiting principle on Congress’s actions . . . Under the U.S. Constitution, says this case, the public domain is “public” only by sufferance. It may be privatized at any moment, at the whim of the Congress and without violating the Bill of Rights.
This decision marked a significant departure from the “bedrock principle” that once works enter the public domain, they remain there, free for anyone to use and build upon. The law at issue in Golan “restored” copyright to foreign works that had entered the American public domain for any of three reasons: the author failed to comply with copyright formalities, the U.S. did not have copyright relations with their country of origin at the time of publication, or they were sound recordings fixed before 1972. Some of these works were famous (including works by Picasso, Shostakovich, and Prokofiev), but many of them were obscure, older orphan works. In upholding the law, the Golan majority explicitly endorsed the position that the public has no legal rights to the public domain. While those who have copyrights enjoy vested, legally protected rights, “[a]nyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.” In a dissenting opinion, Justices Breyer and Alito asked “Does the [Constitution] empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural purposes – all without providing any additional incentive for the production of new material?” Their answer was “No.” (You can read more about this opinion here.)
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 and in the activities regulated. To learn more about these developments, see Professor James Boyle’s The Public Domain, available for free online here.
The Public Domain Day 2014 web pages by Duke University's Center for the Study of the Public Domain are licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.