Folk anthems, jazz and blues classics, pop earworms, Broadway tunes. . . . You would be free to download sheet music for these songs, publicly perform them, or set a short film to them, all without permission or fee.3 You could quote the full lyrics in a book or article, without fear of a lawsuit. Today these musical works remain copyrighted until 2058. Note that the list above refers to the “musical composition”—the underlying music and lyrics—and the songwriters who wrote them, such as Cindy Walker for “Dream Baby.” At the time, federal copyright only covered compositions, and did not cover the “sound recordings” embodying particular performances of them, such as Roy Orbison’s performance of “Dream Baby.” This has changed—under current law, compositions and sound recordings are covered by two separate copyrights.4 (To learn more about music copyright, and the rich history of borrowing in music, see our free comic book!)

Science from 1962—copyrighted research, still behind paywalls

1962 was another exciting year for science. John Glenn became the first American to orbit the earth. The muon neutrino subatomic particle was discovered by Leon Lederman, Melvin Schwartz and Jack Steinberger. The “father of the Internet,” J. C. R. Licklider, began discussing an “Intergalactic Computer Network,” and co-authored (with Welden E. Clark) an article entitled “On-line man-computer communication.” But if you want to read Licklider’s 1962 article on the journal website, and you do not have a subscription or institutional access, you will encounter a paywall.

A distressing number of scientific articles from 1962 require payment, or a subscription or account. Want to download “Unconscious Mental Imagery in Art and Science” in the journal Nature? Here’s the paywall—the pdf is $32. Science and JAMA 5 both charge $30 to view a single article from 1962 for 24 hours. Want to read about experiences from “The Obesity-Diabetes Clinic” in JAMA? Here’s the payment page. Want to read about a report on elevations and ice thickness in “Oversnow Traverse from McMurdo to the South Pole”? If you go to Science’s page to purchase digital access, you will see that you can purchase access for 1 day for $30 US—but that’s not all. You also have to agree to the following restrictions and conditions: “You may view, download, and/or print the article for your personal scholarly, research, and educational use” but may not distribute or post it, and you must agree both to accept cookies and be contacted from time to time about the publisher’s products. Of course, many scientists will have institutional access to these journals, but this access is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions.

It’s remarkable to find scientific research from 1962 hidden behind publisher paywalls. Thankfully, some publishers have made older articles available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. In addition, some older articles have been made available on third party websites, but this is not a stable solution for providing reliable access to science. Third party 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.

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 licenses, meaning that they can be copied freely from the day they are published.

Works from 1990!

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. But we know from empirical studies 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 1990 might have been entering the public domain on January 1, 2019.

That means that all of these examples from 1962 are only the tip of the iceberg. If the pre-1978 laws were still in effect, we could have seen 85% of the works published in 1990 enter the public domain on January 1, 2019. 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 1962 do not retain commercial value,6 but they are off limits to users who do not want to risk a copyright lawsuit. 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 or locatable copyright holder—here and here. Importantly, the US Copyright Office has been engaged in efforts to find solutions to the orphan works problem. However, unlike other countries, the US has not enacted any such solutions.

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 1962 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 The law allows libraries and archives (not preservationists generally) to digitize works during the last 20 years of their copyright term, but only in limited circumstances: the library or archive first has to determine through a “reasonable investigation” that the work is not being commercially exploited and that they cannot obtain another copy of it at a reasonable price.

3 Copyright law has a “compulsory license” that allows people to make recordings of in-copyright compositions if they pay a standard royalty and comply with the license terms. However, this compulsory license doesn’t cover printing sheet music, making public performances, synchronizing audio with video, or making “derivative works.” And, of course, it requires payment; public domain compositions can be freely recorded.

4 Federal copyright did not cover sound recordings until 1972 (though pre-1972 sound recordings were protected under some states’ laws). However, a new law from 2018 called the Music Modernization Act has federalized copyright for pre-1972 sound recordings, in order to clear up the confusing patchwork of state law protection. It gives sound recordings from the 1960s federal copyright protection until February 15, 2067. For more information, please see the Copyright Office's summary.

5 Sometimes you can see the first archived journal article you choose, but the remaining articles are behind a paywall. And even when 1962 articles are readable, they’re still copyrighted—these publishers won’t allow you to reproduce or distribute them without permission.

6 A Congressional Research Service study indicated that only 2% of works between 55 and 75 years old continue to retain commercial value. As explained above, many works from 1962 are technically in the public domain, but it is often difficult to conclusively determine public domain status, so users have to presume that they’re still under copyright.

Public Domain Day 2019 by Duke Law School's Center for the Study of the Public Domain is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.