Our Unfortunate Annual Tradition: A Look At What Should Have Entered The Public Domain, But Didn't

from the this-is-cultural-theft dept

Tue, Jan 3rd 2017 1:07pm — Mike Masnick

Each year, at the beginning of January, we have the unfortunate job of highlighting the works that were supposed to be entering the public domain on January 1st, but didn't (in the US at least) thanks to retroactive copyright term extension. As we've noted, copyright term extension makes absolutely no sense if you understand the supposed purpose of copyright. Remember, the idea behind copyright is that it is supposed to be an important incentive to get people to create a work. And the deal is that in exchange for creating the work, the copyright holder (who may not be the creator...) is given an exclusive monopoly on certain elements of that work for a set period of time, after which it goes into the public domain. That means that any work created under an old regime had enough incentive to be created. Retroactively extending the copyright makes no sense. The work was already created. It needs no greater incentive. The only thing it serves to do is to take away works from the public domain that the public was promised in exchange for the original copyright holder's monopoly. It's a disgrace.

As always, the Center for the Study of the Public Domain at Duke University has the most comprehensive look at what works should have entered the public domain this week, but didn't, due to the scam of copyright term extension that is nothing less than taking away the agreed upon rights of the public.

What books would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.

Harper Lee, To Kill a Mockingbird

John Updike, Rabbit, Run

Joy Adamson, Born Free: A Lioness of Two Worlds

William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany

Friedrich A. Hayek, The Constitution of Liberty

Daniel Bell, The End of Ideology: On the Exhaustion of Political Ideas in the Fifties

Arthur M. Schlesinger, Jr., The Politics of Upheaval: The Age of Roosevelt

Dr. Seuss, Green Eggs and Ham and One Fish Two Fish Red Fish Blue Fish

Scott O’Dell, Island of the Blue Dolphins

John Barth, The Sot-Weed Factor

Jean-Paul Sartre, Critique de la raison dialectique
[....]

Consider the films and television shows from 1960 that would have become available this year. Fans could share clips with friends or incorporate them into homages. Local theaters could show the full features. Libraries and archivists would be free to digitize and preserve them. Here are a few of the movies that we won’t see in the public domain for another 39 years.

The Time Machine

Psycho

Spartacus

Exodus

The Apartment

Inherit the Wind

The Magnificent Seven

Ocean’s 11

The Alamo

The Andy Griffith Show (first episodes)

The Flintstones (first episodes)

[....]

What 1960 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely use some of the great music from this year, January 1, 2017 would have been a rocking day for you under earlier copyright laws. Elvis Presley’s hit song It’s Now or Never (Wally Gold, Aaron Schroeder) would be available. So would Only the lonely (know the way I feel) (Roy Orbison, Joe Melson), Save the Last Dance for Me (Mort Shuman, Jerome Pomus), and Itsy Bitsy Teenie Weenie Yellow Polka Dot Bikini (Paul J. Vance, Lee Pockriss). Your school would be free to stage public performances of the songs from the musical Camelot (Alan Jay Lerner, Frederick Loewe). Or you could set a video to Harry Belafonte’s Grizzly Bear (Harry Belafonte, Robert DeCormier, Milt Okun) from Swing Dat Hammer. Today, these musical works remain copyrighted until 2056.

The analysis goes on to cover important scientific work, locked up behind a paywall and not available to the public. And it also notes that many works from 1988 would also be available for the public domain, under the old system of having a copyright for 28 years, and then being renewed for 28 years. Many, many copyright holders in the past chose not to renew after 28 years, so many works from 1988 would likely have entered the public domain.

Of course, some countries are at least marginally better off. Another site, the Public Domain Review highlights a bunch of works that are now in the public domain in other countries. For countries that have a "life + 70" system, that means any creator who passed away in 1946 -- including Gertrude Stein, H. G. Wells, W. C. Fields and Alfred Stieglitz. For countries that have a "life + 50" system, it means the works of any creator who passed away in 1966 -- which includes Walt Disney, Buster Keaton, Evelyn Waugh and Lenny Bruce.

But, of course, none of that applies to the US. Even though we're now under a "life + 70" system, for any work published between 1923 and 1977 (and where the 28-year renewal wasn't missed), our lovely Congress decided to ignore the "life + nonsense" and just slap a 95-year term on the work (it was originally 75 years, but, of course, the wonders of retroactive copyright term extension made it 95 years). And that's why we never see any new works entering the public domain in the US and haven't for years.

For those who actually understand and recognize the importance and value of a thriving public domain, this continues to be both a farce and an insult to culture.

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Filed Under: copyright, copyright extension, copyright term extension, public domain, us

36 Comments

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Roger Strong (profile), 3 Jan 2017 @ 1:35pm

I'd really like to see a definitive guide for people in "life + 50" and "life + 70" countries. Not just what prominent works have entered the public domain in their countries, but what they can and cannot do with those works.

For example if a book or film is in the public domain in Canada, can you post it on your Canadian-hosted web site? Or can you still be sued by an American copyright holder? If the American copyright holder doesn't have a legal leg to stand on, can your .org domain still be seized by the FBI?
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- Anonymous Coward, 3 Jan 2017 @ 1:54pm
  
  Re:
  
  Or can you still be sued by an American copyright holder?
  
  Wrong question when dealing with Hollywood, they will sue to try and scare off or bankrupt someone, even when they know they will lose. So the question is can you afford the time and expense of winning>.
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  - Roger Strong (profile), 3 Jan 2017 @ 2:19pm
    
    Re: Re:
    That's what I'm afraid of. I live in a "life + 50" country, but effectively I live under the perpetually extended American copyright terms. To treat it otherwise seems like financial suicide.
    
    Which is also too bad for Americans. If those under the "life + 50" international standard asserted their rights and posted public domain works to their sites and forums, the next American term extension would be pointless instead of inevitable.
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- Seegras (profile), 4 Jan 2017 @ 5:56am
  
  Re:
  wikimedia commons. Probably home of the most expansive knowledge on the subject.
  
  Use this as a starting point:
  https://commons.wikimedia.org/wiki/Commons:Copyright_rules
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Anonymous Coward, 3 Jan 2017 @ 1:56pm

Hopefully Donald Trump's hatred of the news media will translate into hatred of Hollywood, since they are essentially one and the same. Sticking it to Hollywood would be great payback for their past treachery, and with little to lose, since the info-tainment industry will continue to have knives out for Trump no matter what.
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- jupiterkansas (profile), 3 Jan 2017 @ 2:35pm
  
  Re:
  His hatred of news media is what he used to get into office. He doesn't want the media to change because he knows how to play it and get all the press he wants. They hang on his every tweet.
  
  I also suspect he loves Hollywood and considers himself a part of it. In the interests of big business, he'll be all for extending copyright to infinity to "protect jobs."
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Theoden, 3 Jan 2017 @ 2:01pm

Farce?
"For those who actually understand and recognize the importance and value of a thriving public domain, this continues to be both a farce and an insult to culture."

Not unlike the US Congress...
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Anonymous Anonymous Coward (profile), 3 Jan 2017 @ 2:07pm

Just Curious
Has anything entered the public domain in the last year. You know, from authors/artists/creators that died 70 years ago?
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- Anonymous Coward, 3 Jan 2017 @ 2:17pm
  
  Re: Just Curious
  Yes, Happy Birthday, but it took a court case to get it there.
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- Mike Masnick (profile), 3 Jan 2017 @ 2:47pm
  
  Re: Just Curious
  Has anything entered the public domain in the last year. You know, from authors/artists/creators that died 70 years ago?
  
  Am I missing something about your question, or is that what the entire post is about?
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  - Anonymous Anonymous Coward (profile), 3 Jan 2017 @ 2:58pm
    
    Re: Re: Just Curious
    Sorry, maybe I am reading the article wrong. It appears to me to be about what didn't make it into the public domain.
    
    In the past you have run articles about how rights holders try to manipulate things to keep them from the public domain, Sherlock Holmes for example. My question is about what actually did make it, if anything, or are rights holders still tap dancing?
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    - jupiterkansas (profile), 3 Jan 2017 @ 3:14pm
      
      Re: Re: Re: Just Curious
      In the U.S., nothing made it into the public domain. Nothing ever enters the public domain. It has been stolen by the corporations.
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    - Anonymous Coward, 4 Jan 2017 @ 12:02am
      
      Re: Re: Re: Just Curious
      Nothing entered the public domain this year, just like the last 18 years or so.
      
      Back around 1998, copyrights in the US were retroactively extended by 20 years. So this created a 20 year period where *no* old works entered the public domain, and we're still in it for another couple of years.
      
      Does that make sense?
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      - Anonymous Anonymous Coward (profile), 4 Jan 2017 @ 6:50am
        
        Re: Re: Re: Re: Just Curious
        Not really. People died in 1945 or 1946 (70 years ago) and some of them may have been writers, movie makers, singers, song writers, etc. The works these creators might have created should now be eligible for the public domain.
        
        At least so far as I understand the law, which is not only not very understandable but incomprehensible in its basis when compared to the US Constitution. Things should enter the public domain every year, unless right-holders are monkeying the system in someway, or better still, again.
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        PaulT (profile), 4 Jan 2017 @ 7:08am
        
        Re: Re: Re: Re: Re: Just Curious
        "Things should enter the public domain every year, unless right-holders are monkeying the system in someway"
        
        Bingo. That happened. The article is a discussion of what would have entered the public domain under the old rules. It's to remind people what is being hoarded, as under the rules at the time they were created they should be public property.
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        Anonymous Coward, 4 Jan 2017 @ 8:32am
        
        Re: Re: Re: Re: Re: Just Curious
        
        Not really. People died in 1945 or 1946 (70 years ago) and some of them may have been writers, movie makers, singers, song writers, etc. The works these creators might have created should now be eligible for the public domain.
        
        Those works entered the public domain in 1995 or 1996, before that extension was passed. It was "only" life+50 then, and at least our retroactive extension didn't pull works OUT of the public domain that had already reached it - it only extended the copyright of works that still had a copyright.
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- Wowzers, 13 Feb 2017 @ 8:21am
  
  Re: Just Curious
  Almost everything published in 1921 entered the public domain on 1/01/2017 given that any and all works less than 95 years old (as of 1998) were unceremoniously yanked out of the public domain by Sonny Bono in 1998.
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ltlw0lf (profile), 3 Jan 2017 @ 2:18pm

Video Games...
Think about all the video games that haven't entered the public domain after 28 years. It is doubtful that any video game company would have renewed their copyright after 28 years, and most video games from 1989 and earlier would now be in the public domain.

NES Roms would all be in the public domain, as would many MAME Roms, SEGA Master System Roms, Atari 2600 Roms, and a slew of other ones.

Yeah, there is a huge market for all those pre-1989 games out there right now that we have to lock everything up for 70 years (of course, the real reason is so that current vendors of games can "maximize" their profits by not having to compete with retro games.)
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- kallethen, 3 Jan 2017 @ 2:37pm
  
  Re: Video Games...
  Thank you for making me feel old. :(
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  - ltlw0lf (profile), 3 Jan 2017 @ 3:54pm
    
    Re: Re: Video Games...
    
    Thank you for making me feel old. :(
    
    Just sharing the love...I am old enough to remember my dad bringing home this awesome console known as an Atari 2600, and with it, I could play games to my heart's content.
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  - Roger Strong (profile), 3 Jan 2017 @ 5:26pm
    
    Re: Re: Video Games...
    I started programming at the end of the punch card era. But last month I found out that I'm an old-timer because I still know how to author a DVD.
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Anonymous Coward, 3 Jan 2017 @ 2:44pm

Start calling it what it is: Copyright Theft.
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- Anonymous Coward, 3 Jan 2017 @ 2:46pm
  
  Re:
  Or Theft by Copyright.
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R.H. (profile), 3 Jan 2017 @ 3:14pm

About That 95-Year Copyright...
When do those 95-year copyrights on 1923 works expire, January 1st, 2018 or January 1st, 2019? Either way, barring another senseless extension, we'll start having some new public domain works again within the next two years.
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- orbitalinsertion (profile), 3 Jan 2017 @ 3:42pm
  
  Re: About That 95-Year Copyright...
  Yeahhhh, about that... Welcome to court ordered blanket injunctions preserving copyright until it is raised to 120 years.
  
  Everybody say, "Hi Mickey!"
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- That One Guy (profile), 3 Jan 2017 @ 7:37pm
  
  Re: About That 95-Year Copyright...
  Trick question, they don't.
  
  You can be absolutely sure that once that 'deadline' starts getting closer there will be a massive push by the parasites to enact yet another 'Because Screw The Public' retroactive copyright extension.
  
  Nothing has entered the public domain in the US in years(decades?), they're not about to let that change, ever, if they can help it.
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- Fred, 9 Mar 2017 @ 5:27pm
  
  Re: About That 95-Year Copyright...
  January 1st, 2018 is when almost everything published in 1922 (not 1923) is currently slated to escape copyright in the United States, barring yet ANOTHER retroactive copyright term extension that applies to old works (as in everything published than X amount of years ago no matter how many such old works had previously escaped copyright) as well as new ones. (How many more centuries of copyright protection do works like Romeo & Juliet really need, anyway!)
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Anonymous Coward, 3 Jan 2017 @ 3:52pm

About Canadian Copyright Law
>For example if a book or film is in the public domain in Canada, can you post it on your Canadian-hosted web site?

Absolutely. Check out Gutenberg.ca and fadedpage.com, two sites offering thousands of free books, many of which are still under copyright elsewhere.

>Or can you still be sued by an American copyright holder?
If you have an identifiable (or suspected) U.S. presence, copyright fascists may knock on its door. Otherwise, based on the experience of the sites mentioned above, they'll send risible litigation threats (to which you respond, "talk to my solicitor, whose chef knows which spices best enhance the flavour of your lawyers' liver and giblets.").

>If the American copyright holder doesn't have a legal leg to stand on, can your .org domain still be seized by the FBI?

Of course. (Just ask Kim.Com!) You don't even have to commit an act which would have been illegal in the U.S.! Innocence is no defense, if the wrong bureaucrat wants to get you. (But this isn't something to worry about--Hey, if you're so living in the Great North American Icebox, why ain't you got a .CA domain anyway?)

Strongly recommended blog on Canadian law, from a freedom-of-thought perspective, by an actively-practicing Canadian attorney specialist, http://www.michaelgeist.ca/tech-law-topics/
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Anonymous Coward, 3 Jan 2017 @ 3:58pm

Time to drain the swamp. Greed is a powerful thing, I imagine blood will be shed.
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Avantare, 3 Jan 2017 @ 5:13pm

Pirates!
And they wonder why some people are pirating. Dipshits....
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PaulT (profile), 4 Jan 2017 @ 12:59am

"The Time Machine"

I wonder immediately - was the book in the public domain when the 1960 film was made? If so, what a great example of Hollywood depending on the public domain for free material but refusing to return the favour for the next generation.
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- Anonymous Coward, 4 Jan 2017 @ 4:28am
  
  Re:
  Actually, that's pretty much Disney 's entire buisness model.
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Anonymous Coward, 4 Jan 2017 @ 1:14am

"... the Public Domain Review highlights a bunch of works that are now in the public domain in other countries...."

One of the reasons why the consumers of copyrighted goods don't give a crap about piracy. It's such an ungodly mess.
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Anonymous Coward, 4 Jan 2017 @ 3:14pm

So wait, to clarify: Mickey Mouse is now public domain in Canada, as their life+50 term has expired?
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- PaulT (profile), 4 Jan 2017 @ 11:52pm
  
  Re:
  I'm not sure exactly how it works there, but I would presume that while this might apply to the individual shorts, the actual character of Mickey is very much protected by copyright and/or other protections such as trademark.
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Philly Bob, 4 Jan 2017 @ 6:13pm

We can all thank the Mouse...
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