It’s a Wonderful Public Domain….. What happens when works enter the public domain? Sometimes, wonderful things. The 1947 film It's A Wonderful Life entered the public domain in 1975 because its copyright was not properly renewed after the first 28-year term. The film had been a flop on release, but thanks to its public domain status, it became a holiday classic. Why? Because TV networks were free to show it over and over again during the holidays, making the film immensely popular. But then copyright law reentered the picture…. In 1993, the film's original copyright holder, capitalizing on a recent Supreme Court case, reasserted copyright based on its ownership of the film's musical score and the short story on which the film was based (the film itself is still in the public domain). Ironically, a film that only became a success because of its public domain status was pulled back into copyright.
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 1961 would be entering the public domain. They range from the books Catch-22, Stranger in a Strange Land, and The Phantom Tollbooth to the films Breakfast at Tiffany’s and West Side Story, and much more. 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 1989 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.
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. These are works that have no identifiable or locatable copyright holder. Though no one is benefiting from the copyright, they are unavailable: it is presumptively illegal to copy, redistribute, or publicly perform them.
…And What Can Be Done About It
Does all this mean that copyright is a bad system? Of course not. 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.
The basic principles of our copyright system are sound. But there is a consensus among academics, economists, and policymakers — including two heads of the United States Copyright Office — that the longer term is a "big mistake." Why? Because its benefits are minuscule — economists (including five Nobel laureates) have shown that term extension does not spur additional creativity. At the same time, it causes enormous harm, locking away millions of older works that are no longer generating any revenue for the copyright holders. Films are literally disintegrating because preservationists can’t digitize them. The works of historians and journalists are incomplete. Artists find their cultural heritage off limits. Studies like the Hargreaves Review commissioned by the UK government, empirical comparisons of the availability of copyrighted works and public domain works and economic studies of the effects of copyright (other articles are here and here) 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 15 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 legal reform that would give greater access to orphan works. The US Copyright Office has continued its efforts to find solutions to the orphan works problem. 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, and from scholarly literature on the subject, including David Lange’s seminal 1981 article “Recognizing the Public Domain” and 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. You can also read In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day, an article by Center Director Jennifer Jenkins revealing the promise and the limits of various attempts to reverse the erosion of the public domain, and a short article in the Huffington Post celebrating a previous Public Domain Day.
1 The European Union has a term of life plus 70 years, meaning the works of authors who died in 1947 go into the public domain on January 1, 2018 (the beginning of the year after copyright expiration). In Canada, New Zealand, and many other countries the term is life plus 50 years, so the works of authors who died in 1967 will enter the public domain in 2018. However, it is often very hard to determine if a particular work is in the public domain. The public domain works we mention are based on the assumption that the named author is the copyright holder and that the term is life plus fifty or seventy years.
2 No published works will enter the United States public domain until 2019. However, a subset of works – unpublished works that were created by authors who died in 1947 and were not registered with the Copyright Office before 1978 – will be entering the public domain this year. But, because these works were never published, potential users are much less likely to encounter them. In addition, it is difficult to determine whether works were “published” for copyright purposes. Therefore, this site focuses on the millions of published works that will not be entering the public domain.
3 Works published between 1923 and 1963 are only copyrighted if the rightsholders complied with notice and renewal formalities.
Special thanks to our tireless and talented research maven and website guru Balfour Smith.
Public Domain Day 2018 by Duke Law School's Center for the Study of the Public Domain is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
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