Celebrate Public Domain Day… By Realizing That Not A Single Published Work Will Become Public Domain Until 2019

Aldus Huxley's Brave New World entered the public domain in Canada yesterday, but not in the U.S., where it will remain protected for another 20 years.

Aldus Huxley’s Brave New World entered the public domain in Canada yesterday, but not in the U.S., where it will remain protected for another 20 years.

As happens every January, various pieces of literature, scholarship, film, music, plays, and other copyrighted works of art enter into the public domain, meaning the public has the right to publish, perform, use, and display these works without seeking permission. That is, except in the U.S., where not a single published work will be joining the public domain until 2019.

Starting in 1978, a new law lengthened the terms of copyright protection from the previous maximum of 56 years from date of copyright, to the author’s lifetime plus 50 years.

The law also retroactively provided that new, longer protection period to still-copyrighted material published between 1923 and 1977. Since many authors of works published during this period failed to initially extend their copyright, or hadn’t properly indicated that their works were copyrighted, a number of things still came into the public domain after the 1978 law. However, since most successful books, films, songs, etc., had actively been extending their copyright under the old law, the new life-plus-50 rule kicked in.

Then there was the Sonny Bono Copyright Term Extension Act of 1998, which not only further extended protection by 20 years (life of the author plus 70 years), but automatically provided 95-year terms for all still-copyrighted pre-1978 works.

And so even though plenty of authors died between 1923 and 1943, meaning their works should now be in the public domain. But because of the 95-year terms granted by the Extension Act, the earliest these works will enter the public domain is 2019.

There are those who point the white-gloved finger directly at Disney for this public domain vacuum, as the company lobbied heavily for the Extension Act out of fear that some of its earliest properties — most importantly Mickey Mouse — would enter into the public domain.

Critics of the extension worried that continuing to stretch out protections wasn’t a matter of helping the artistic community, but instead was a demonstration of how media interests could manipulate lawmakers.

“To suggest that the monopoly use of copyrights for the creator’s life plus 50 years after his death is not an adequate incentive to create is absurd,” wrote Sen. Hank Brown of Colorado in a 1996 report for the Senate Judiciary Committee. “The real incentive here is for corporate owners that bought copyrights to lobby Congress for another 20 years of revenue—not for creators who will be long dead once this term extension takes hold.”

The Duke Law School’s Center for the Study of the Public Domain has this round-up of the well-known books and films that would have joined the public domain yesterday without enactment of the 1978 law, including Dr. Seuss’s How the Grinch Stole Christmas and The Cat in the Hat; Ian Fleming, From Russia, with Love; Federico Fellini’s Nights of Cabiria; and The Seventh Seal, directed by Ingmar Bergman.

Even under the like-plus-50 guideline established by the 1978 law, works from authors like Aldus Huxley, C.S. Lewis, Robert Frost, Sylvia Plath, and W.E.B. DuBois, would now be in the public domain. In fact, these authors’ works are now in the public domain up in Canada, where they follow the life-plus-50 rule.

One copyrighted character that got a huge stay in public domain execution was Superman. Even though Jerry Siegel and Joe Shuster, the two creators of the character, died in 1996 and 1992, respectively, the actual copyright on the first publication belongs to DC Comics (though this has been a matter of much dispute). The pre-Extension Act copyright law provided protection terms of 75 years for corporate copyright holders. Since Superman first appeared in 1938, he would have been set for public domain in 2014.

But the 1998 Extension Act extends copyright protection for corporate authorship to 120 years after creation or 95 years after publication, whichever comes first, thus granting DC Comics several more years to squeeze money from the Man of Steel… and some time to save up to lobby for another copyright extension law.

Public Domain Day: January 1, 2014 — The Road NOT Taken [Duke Law]
15 years ago, Congress kept Mickey Mouse out of the public domain. Will they do it again? [Washington Post]
No books for you: U.S. starves public domain for another year [GigaOm]