The Ongoing Enclosure of the Public Domain

Unbeknownst to millions of people recovering from their celebrations the night before, New Year's Day is a mini-celebration nested within a more famous holiday. Who among us realized that it was.... “Public Domain Day.” This is the date on which copyrights are supposed to expire on millions of works from a previous generation. It's the date on which the proprietary controls lapse and creative works become born again as public domain artifacts that can be freely used by anyone, for any purpose.

Alas, nothing entered the public domain this year. In fact, nothing will enter the public domain until January 1, 2019, thanks to the twenty-year extension of copyright law that Congress enacted in 1998 at the behest of Disney Co. and other media giants. This may explain why Public Domain Day remains so obscure! Nonetheless, the redoubtable host of Public Domain Day – the Center for the Study of the Public Domain at Duke Law School – annually commemorates this date to educate the public about the theft of works that rightly belong to them.

For this year's “celebration,” we learn how the public domain has been impoverished through excessive copyright terms. Last week the Center provided a wonderful survey of the cultural heritage that remains locked up. “What Could Have Entered the Public Domain on January 1, 2012?” it asks. The answers include the films The Body Snatchers, Rebel Without a Cause, Lady and the Tramp.  Then there are all the books from that 1950s that you could copy and share for free: Vladimir Nabokov's Lollita; Rudolf Flesch’s Why Johnny Can't Read; J.R.R. Tolkien’s The Return of the King, the last book of his Lord of Rings trilogy; and Edward Steichen’s famous book of photographs, The Family of Man; among many others.

We are also denied free access to William F. Buckley, Jr.'s National Review; the episode of I Love Lucy featuring Harpo Marx and Lucille Ball; and Elvis Presley's first television appearance (on Louisiana Hayride, March 5, 1955). But for extended copyright terms, we would have access to artworks such as Pablo Picasso’s Don Quixote, Rene Magritte’s Masked Apples, and Ansel Adams’ Half Dome Blowing Snow, 1955.

A lot fo problem stems from the Copyright Act of 1976, which extended copyrights to an author's lifetime plus 70 years, or 95 years for works owned by corporations. Had copyright terms remained at 56 years (28 initial years, renewable for another 28), we would be able to legally use and remix The Seven Year Itch, starring Marilyn Monroe, and Alfred Hitchcock's To Catch a Thief, starring Cary Grant and Grace Kelly.  We could show James Dean's East of Eden and Rebel Without a Cause for free at a local theater or on TV.

These are just the famous works from that era, notes the Center for the Study of the Public Domain. But there are far more non-famous works that would also be available. Most films and books lose their commercial value well before the copyright term expires. As a result, before the 1976 copyright law, most copyright owers declined to renew their copyrights – which meant the works entered the public domain after 28 years! In practice, according to the U.S. Copyright Office, some 85% of authors did not renew their copyrights – and for books, the non-renewal rate was 93%.

Now, works copyrighted in 1955 won't enter the public domain until 2051. This is a huge, needless waste of our cultural heritage.  Essentially a tiny fraction of copyrighted holders whose works retain some commercial value after decades, is holding the rest of our cultural legacy hostage. 

It's worth quoting from the Center's website to understand how things could be different:

…..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.

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.

Here's hoping that Public Domain Day will be less of a wake, and more of a celebration, in future years.

Image collage from the Center for the Study of the Public Domain website, licensed under a Creative Commons Attribution-ShareAlike 3.0 unported license.

Update:  A reader has pointed out that The Body Snatchers that entered the public domain was the 1955 book by Jack Finney; the arguably more famous film version, Invasion of the Body Snatchers, which starred Kevin McCarthy and appeared in 1956, will not enter the public domain until January 1, 2013.  Alas.