Hopefully For The Last Time: The US Has Zero New Works Enter The Public Domain On January 1st
from the one-more-year... dept
For many years now, during the first week of January, we write a post about Public Domain Day. That's the day -- January 1st -- where works that have reached the statutory limit reach the public domain. The Public Domain Review has an excellent collection of the Class of 2018 -- showing what works entered the public domain this week in the "life plus 50" copyright countries (Canada, New Zealand, and many countries in Asia and Africa) and the "life plus 70" copyright countries (most of the EU, Brazil, Israel, Russia, Turkey, Nigeria). For life plus 70 countries, the works of Aleister Crowley and Winston Churchill are now in the public domain. For the life plus 50 countries, Rene Magritte's paintings, the song compositions of Woody Guthrie and Otis Redding, and the writings of Jean Toomer are now in the public domain -- among many others.
Except, as we note each and every year, there is no such "graduating class" in the US. Because, thanks to Disney's heavy lobbying, copyright keeps getting extended and extended and extended. If you're interested, the Center for the Study of the Public Domain at Duke University has also put together its depressing annual "What Could Have Entered the Public Domain..." list for the US, if the law had remained as it was prior to 1978, when the maximum length of copyright was 56 years. Under that setup, Josepher Heller's Catch-22, Salinger's Franny & Zooey and Robert Heinlein's Stranger in a Strange Land all would have entered the public domain. Grok that. Movies including Breakfast at Tiffany's, West Side Story, and The Guns of Navarone all would have entered the public domain as well. And, of course, a ton of music:
What 1961 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 influential music from 1961, January 1 2018 would have been a rocking day for you under earlier copyright laws. Patsy Cline’s classic Crazy (Willie Nelson) would be available. So would Stand By Me (Ben E. King, Jerry Leiber, Mike Stoller), Runaway (Del Shannon, Max Crook), and Let’s Twist Again (Kal Mann, Dave Appell). You could publicly perform or set short films to Surfin' (Brian Wilson, Mike Love) or Crying (Roy Orbison, Joe Melson), all without permission or fee. Today these musical works remain copyrighted until 2057
There's much more as well. As the Center notes in a companion post, this should be seen as highly problematic. Locking up our culture like this does no one any good -- except for a very, very, very, very small number of copyright holders on the few works that are still economically viable. Even worse, because things are locked up for so long, so much of our culture becomes orphan works -- which tend to disappear entirely, as no one can even figure out who holds the copyright in question, should they even want to make use of it. And, without the public domain, we lose access to potentially wonderful aspects of culture:
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.
The one bit of good news, hopefully on the horizon is that this should be the last year that nothing enters the public domain on Public Domain Day. While Disney and other big copyright holders have been able to continually push out the eventual entrance of new works into the public domain in the US, if nothing changes, next January we will finally have works published in 1923 enter the public domain in the US. There had been rumblings about another attempt at copyright term extension in the US a few years back, but it's been much quieter in the past few years, as I think even the lobbying powerhouses in the music and movie industries have realized this isn't a fight they could win, or one really worth having. That doesn't mean someone won't try to extend the term again, but I hope most people now recognize what a bad idea it would be.
Of course, it's still ridiculous that it's only now that those works from the 1920s are entering the public domain -- while other countries are at least getting works from the 1940s or 1960s. Rather than worrying about copyright term extension, it seems we should really be exploring ways to bring copyright term back down to a much more reasonable time frame.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, copyright term extension, public domain, public domain day
Reader Comments
The First Word
“Re: How does this matter when you kids believe even NEW works are yours for the taking?
Or maybe it is the fact that companies have stolen our culture and are holding it hostage and the younger generation doesn't believe a digital copy is the same as theft since nothing of value was taken. Could be anything really though.Subscribe: RSS
View by: Time | Thread
Oh if only...
While it would be nice for the public's half of the deal that is copyright to finally get something, I suspect that the looming threat of such happening will spur a frenzy of activity to make sure that it won't occur.
Whether it be an open push to 'Protect The Creators!(and their children. And their children's children...)' by passing yet another retroactive expansion, or it will be slipped through quietly in an unrelated bill, while it would be nice to finally see something added to the public domain in the US, history shows that there are plenty of well funded groups who will fight tooth and nail to ensure it won't happen.
The question is not 'Will they try to screw the public yet again?', but 'How and when?', and while I'd love to be proven wrong, I don't expect to be.
[ link to this | view in chronology ]
Re: Oh if only...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I'd also like a definitive answer on whether I could get in legal trouble for hosting that collection on a public web server here in Canada. (With nothing to stop Americans from accessing it.)
We really need versions of the EFF and Center for the Study of the Public Domain in one of the "life plus 50" countries. The lack of definitive answers is probably the only thing keeping "life plus 50" folks from openly sharing, and making "life plus 70" and America's "everything after 1923, forever" terms irrelevant.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
How does this matter when you kids believe even NEW works are yours for the taking?
Besides, you are overlooking advantage of what you so often tout: teh internets, with nearly everything available. (Except for a certain old movie that I want to see again: il ne existe pas!)
You have my support to grab content older than 28 years -- it's an illegal ex post facto change to extend copyright -- that's an example where you can use common: to resist The Rich and their corporatism.
[ link to this | view in chronology ]
Re: How does this matter when you kids believe even NEW works are yours for the taking?
[ link to this | view in chronology ]
Re: How does this matter when you kids believe even NEW works are yours for the taking?
[ link to this | view in chronology ]
Re: How does this matter when you kids believe even NEW works are yours for the taking?
Which you'll never see thanks to the laws you support. Nice going.
> it's an illegal ex post facto change to extend copyright
But you'll support those changes because you can't stop coming back to a website you hate so much.
[ link to this | view in chronology ]
Re: How does this matter when you kids believe even NEW works are yours for the taking?
but I find another question more pressing.
What old movie do you want to see again you can't find?
[ link to this | view in chronology ]
Re: Re: How does this matter when you kids believe even NEW works are yours for the taking?
This means books, poems, songs, photographs, TV broadcasts, magazines, and many other things that the creators never anticipated being under copyright long past their deaths, and no effort is being made to preserve them, archive them, or make them available to the public in any way - either because it's just not economically viable, or the owner just doesn't care. This is assuming, of course, the owner of the work is known. If not, the work sits unused because you can't even ask permission or pay someone to use it.
For the sake of the movie business, all the rest of culture suffers.
[ link to this | view in chronology ]
Re: Re: Re: How does this matter when you kids believe even NEW works are yours for the taking?
I'd highly disagree with that, but it really does depend on which titles you're searching for. Sure, if you want something that was a box office hit in its day or it later found a sizeable audience on VHS, you're usually OK to get it.
With more obscure/independent titles, you're very much in the position where the works are orphaned and/or simply not made available by the studios responsible for them. There's a *lot* of titles that are not available legally, and many more in desperate need of remastering or other work that can't be done due to copyright.
[ link to this | view in chronology ]
Re: Re: Re: Re: How does this matter when you kids believe even NEW works are yours for the taking?
That said, lots of movies still aren't available or easily available or need restoration and copyright isn't helping anybody - even the studios that own them and doing nothing with them.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: How does this matter when you kids believe even NEW works are yours for the taking?
It's also amazing what's not available when you really start looking, at least in legal form. We're in something of a golden age for things being released for collectors, but every boutique label has a list of things they wish they could release but are unable to due to copyright and orphaning.
"In fact movies are one area where being in the public domain makes it worse, because there aren't enough movies in the public domain to build an industry around like there is with books and music."
I'd disagree with that, although the relative youth of the medium does mean the PD content perhaps doesn't have the same breadth. Nosferatu alone has had 3 direct takes on it that I can think of, plus plenty of rescored rereleases and a breadth of content in other media taken from it - and that's even if you don't include the direct references used in other stories and media (Barlow in the 1979 version of Salem's Lot, for example, who is a direct copy of the Orlock chracter).
There is, honestly, no way being PD could make any movie worse, so I don't know what you really mean by that.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: How does this matter when you kids believe even NEW works are yours for the taking?
Whether that's true is another question, but that's how I read that phrase.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: How does this matter when you kids believe even NEW works are yours for the taking?
The sticking point is where movies *should* be public domain, but aren't and thus cannot be legally released if the copyright holder either refuses or cannot give permission (they're dead, the company no longer exists, etc). That means they end up rotting in vaults or being lost forever, which is something *prevented* by them being public domain. By definition, the PD removes obstacles to release, it cannot introduce them.
For an example of this, look at the history of the Edison version of Frankenstein, made in 1910 (short version, as I understand it: for years, the only known good surviving copy was owned by a dickhead collector who refused to release it anywhere for years, then plastered his own watermark over copies to prevent anyone else from viewing it properly without paying him since the "new" copy qualified for its own separate copyright). Thankfully the film has since been released and restored a number of times and the film remains in the public domain where it belongs, but that was prevented for a time due to copyright.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: How does this matter when you kids believe even NEW works are yours for the taking?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: How does this matter when you kids believe even NEW works are yours for the taking?
Fuck it, blue boy doesn't get the benefit of doubt on this one.
[ link to this | view in chronology ]
Re: Re: How does this matter when you kids believe even NEW works are yours for the taking?
Based on the laws he advocates like three strikes, knowing where to get them constitutes tertiary liability, even if he doesn't actually download it. Remember, under copyright plaintiff law the plaintiff only needs to convince the judge that you have an inclination to access culture you're not otherwise capable of accessing or permitted to do so, even if there's absolutely no proof that an offense has occurred.
Or we could go for the likelier answer in that he's lying and just can't resist posting as a moral superior regardless of how stupid it makes him looks. Like the time where he insisted that the RIAA could not be held responsible for the piracy occurring via their IP addresses.
[ link to this | view in chronology ]
Re: What old movie do you want to see again you can't find?
All of these.
[ link to this | view in chronology ]
Re: How does this matter when you kids believe even NEW works are yours for the taking?
That is an interesting development indeed - and one that undermines a considerable number of your positions regarding copyright and piracy.
[ link to this | view in chronology ]
Re: How does this matter when you kids believe even NEW works are yours for the taking?
[ link to this | view in chronology ]
Re: How does this matter when you kids believe even NEW works are yours for the taking?
Maybe it's the huge, blatant hypocrisy of it.
Public: Many of your movies have been based on public domain works, why is that?
Disney: The public domain is an invaluable resource of ideas and stories.
Public: When is Disney going to contribute something to the public domain?
Disney: ARE YOU INSANE??? NOTHING WE MAKE WILL EVER BE PUBLIC DOMAIN!!! IT ALL BELONGS TO US FOREVER!!!
[ link to this | view in chronology ]
I find 14 years, optionally renewable once to be perfectly reasonable.
[ link to this | view in chronology ]
Re:
That's dangerous, he's using the "Me too" as well as the "starving artist" arguments. These have so far proven persuasive.
[ link to this | view in chronology ]
We need to extend copyright
[ link to this | view in chronology ]
Re: We need to extend copyright
Time travelers have a way to optimize that. They create something at any time, then travel to the future to die on the very last day of humanity. (Or even 50 years before that.)
That's how you get eternal copyright when you can time-travel.
[ link to this | view in chronology ]
Re: Re: We need to extend copyright
What's to stop a popular author's estate from cryogenically freezing the author before they die, so there is no death certificate and the countdown clock never stops ticking?
[ link to this | view in chronology ]
Re: Re: Re: We need to extend copyright
https://waitbutwhy.com/2016/03/cryonics.html
[ link to this | view in chronology ]
Re: Re: Re: Re: We need to extend copyright
It would be very interesting if this sort of thing ever happened for the purpose of extending copyright.
[ link to this | view in chronology ]
Re: We need to extend copyright
[ link to this | view in chronology ]
For the synaptically challenged
Getting old content for free isn't the problem. The problem is that said content and often anything with even a passing resemblance to it, is basically forever forbidden as inspiration for new creations for fear of being sued. But then I suspect the "person" who claimed that is well aware.
[ link to this | view in chronology ]
thirteen@neetriht.com
[ link to this | view in chronology ]
I'm writing...
[ link to this | view in chronology ]
Re: I'm writing...
(It's like "but on a computer / network / the internet" patents.)
[ link to this | view in chronology ]
Re: I'm writing...
Porn version is considered parody/satire and is allowed.
[ link to this | view in chronology ]
Re: I'm writing...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
To which I ask: What copyright?
There never was a legitimate copyright on Steamboat Willie, because the copyright notice was botched. This is similar to the Night of the Living Dead situation, but unlike Romero, no one's ever gone after Disney in court.
[ link to this | view in chronology ]
Re: Re:
I was aware of that fact, but since it's treated as if its copyright is valid, 2023 is when that copyright would expire. So that's when Disney will start pushing for an extension.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Copyright vs. public domain
[ link to this | view in chronology ]
Re: Copyright vs. public domain
[ link to this | view in chronology ]
Copyright vs. trademarks
It seems that the concept of a copyright is to guarantee the creator of the IP to own his/her/their creation during the lifetime of the copyright owner. My opinion is that a copyright should only be viable during the life time of the original owner as it is an intellectual property... after the intellect has left our "realm,"... ?
[ link to this | view in chronology ]
Re: Copyright vs. trademarks
The "creator of the IP" is the government, or, if you like, what we have allowed government a corporations to do under our social contract. The IP is the copyright itself. (Or the patent, or trademark.)
But yes, it makes sense to allow the creator(s) a limited monopoly during their own lifetime, and the IP itself is non-transferrable, but licensable non-exclusively.
[ link to this | view in chronology ]
17 U.S. Code § 1201 - Circumvention of copyright protection systems
Even if the act of cracking public domain encrypted works were indeed legal (which logic would dictate) unfortunately both the creation and distribution of any such cracking tool would be illegal under the DMCA -- because such a tool could ostensibly be used to unlawfully crack copyrighted media.
Perhaps Techdirt has previously discussed this legal paradox. Granted that along with fair-use exceptions to the DMCA's draconian criminal penalties, it's a (mostly) intellectual argument since encryption-busting software like AnyDVD has been readily available on the internet for many years.
[ link to this | view in chronology ]
Re: 17 U.S. Code § 1201 - Circumvention of copyright protection systems
The DMCA makes personal use illegal in practice, but does not reconcile this fact with the personal use exception in the US code.
This is a conundrum that even the US Supreme court has avoided and for good reason: Any attempt to fix that dependency would have Congress up to it's necks in both Pro-IP Rights and Anti-IP Rights activists / lobbyists. With both sides trying to paint the other as the Anti-Christ. Given the amount of things and popular practices that would suddenly be free game for the lawyers if the Pro-IP side won, the public would probably be against the Pro-IP side, but the donors would be for them. Groups like the EFF would be parroting all of the horrors of the Pro IP side, and the politcos would be parroting the loss of "innovation" / "jobs" / "apple pie" the Anti-IP side was "desperate to shackle hard working Americans with". The only thing that would result is a lot of vacated seats come next election regardless of any change (or lack thereof) to law, and a very angry populous. If the law was successfully changed, then you'd have a new hot button issue to rally the bases with, that would be bounced back and forth with each change of Administration.
Never mind the fact that thanks to how long it's been since the DMCA was passed, we now have a list of the laws side effects that would have pretty much the entire IT, security, and parts of the tourism industries in an uproar too. All wanting their say.
In short, the changes wouldn't solve really anything, would create more political strife, and would remove ambiguity from the law that the Pro-IP supporters actually benefit from currently in the courts. While opening them up to the potential to loose power. Both through potentially loosing their "veto right" over actual developers / innovators, and through the potential rendering of their government-enforced obsoleted-by-computers-and-the-internet business model finally drying up.
[ link to this | view in chronology ]
HR-Disney
[ link to this | view in chronology ]
Cultural participation will happen regardless of how restrictive rightsholders become. People are simply not going to wait 100 plus years to finally be able to enjoy and draw inspiration from existing popular works and build upon it
[ link to this | view in chronology ]
Just a question: how many people from 1923 are alive *and* in shape to produce more wonderful stuff?
Copyright is virtually infinite for works created within anybody's productive lifetime.
"the United States Congress shall have power "To promote the Progress of Science and useful Arts, by securing for ****limited Times**** to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Emphasis mine.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
The problem isn't really what famous works aren't going PD
[ link to this | view in chronology ]
Re: The problem isn't really what famous works aren't going PD
[ link to this | view in chronology ]
Re: Re: The problem isn't really what famous works aren't going PD
[ link to this | view in chronology ]
Re: The problem isn't really what famous works aren't going PD
One of the big problems with the corporate control of copyright is that they can essentially rewrite history. Anything that hasn't been financially successful can be lost, and we all know that the money makers are often not the actual quality works of any era. If there's no incentive for corporations to maintain and preserve such works, they may disappear from history as nobody else is permitted to do so either, and that's in direct opposition to the stated purpose of copyright in the first place, and a negative for everyone.
[ link to this | view in chronology ]
This practice should be illegal, but instead, the US is pushing other countries to do the same.
The majority of infringement of copyright is over distribution, not replication. The transformative and derivative clauses added to the 1972-current law is where these distribution rights can cover everything else not originally covered by the creator.
It's pretty disgusting an author like JK Rowling, who made millions on Harry Potter, can easily walk into our court system, cry, and have a lexicon ruled as infringement despite the fact the lexicon is legal (even in the UK, her home country).
Copyright law will never change for the better. Disney is hell bent on ensuring works are created indefinitely so they can maintain their position as both "creator" but more importantly as distributor.
Mickey Mouse "enters" the public domain in 2023.
Given how many of rush out to see the latest Marvel and/or Star Wars movies netting Disney billions, it's a guarantee the Mouse will prevail.
Again.
[ link to this | view in chronology ]
It's not the "public domain" that they fear.
One author noted that the 1960's does not exist on Netflix - presumably, some of Netflix's customers would want to watch Psycho now and then, but Netflix is unwilling to pay what the studio would want to earn for allowing Psycho to compete with Netflix exclusives or the higher-license fee studio release.
Instead of the video store of old having 30,000 titles to choose from, all bought and paid for and available without the copyright owner's permission, we now rely on a permissions-based system in which you could subscribe to Netflix plus its top 5 competitors and still not have nearly as many choices.
My point is that PD movies seem to be the least of their worries. They want to dry up the choice of unlicensed viewing, undermining the public benefits from the first sale doctrine, and replacing it with a carefully negotiated viewing by permission only.
No one ever needed the copyright owner's permission to watch a movie once released on VHS, DVD or Blu-ray. Now, those numbers are dropping, and the digital delivery environment is becoming a walled garden in which the public need not know Psycho ever existed. Perhaps the best antidote is a shorter copyright term. "Limited times" has no practical meaning when the copyright term lasts longer than a normal human's lifetime.
[ link to this | view in chronology ]
Re: It's not the "public domain" that they fear.
That's interesting, since the bulk of public-domain films being sold on DVD seem to have been 1960s era, being in both the early color-film era as well as the late pre-VCR era.
When cheap DVDs (often with two films on one disk) starting hitting the $1 bargain bins in Walmart, Dollartree, and other stores about 15 years ago, I noticed that many of them were made in the 1960s (mostly films I'd never heard of starring well-known actors) and reasoned that this apparent "sweet spot" may have been because these apparently public-domain films had lapsed their copyrights at a time before VCR tapes came out and offered previously unprofitable [low-public-interest] films that had already exhausted the then-existing commercial release cycle of cinema+TV a new lease on life.
Ironically, had Sony's VCR been successfully killed off by Hollywood in its infancy, it's quite likely that many more films would have lapsed into the public domain, as the owners really had no reason to go to the trouble of renewing copyright on films that were essentially commercially dead, having flopped at the cinema and that TV stations were therefore not interested in broadcasting.
[ link to this | view in chronology ]
Re: Re: It's not the "public domain" that they fear.
This would be very different to John's example of Psycho, which as a successful studio release will have had its copyright maintained deliberately. Unlike independent studios, who may not still have existed when the renewal was due, Universal will very much have kept on to their registration. This is actually part of the problem - if copyright had not expired before the retroactive change in copyright law to make re-registration unnecessary, a work may never be legally placed into the public domain unless no further changes to the law allow it.
John is not quite correct in certain ways - for example, Psycho is still very much available to rent or buy digitally, you just can't stream it on Netflix specifically. Even if Netflix have decided to concentrate on new "original" content, they still have plenty of competition. But, it's something worth noting - if something made after 1923 is not currently in the public domain in the US and the author cannot / will not give permission for it to go into PD, you still have a long wait ahead of you.
[ link to this | view in chronology ]
Churchill?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Where are the lobbyists?
In 1998, the internet was in it’s infancy. So news about the CTEA never really spread. These days, everyone would find out about it. Plus, I’m willing to bet that a vast majority of Americans have a general understanding of copyright. More than the number who protested about the TPP and Net Neutrality. So there would be more people protesting about another copyright extension.
So keeping it top secret with a means to by-pass congress would not be a surprise
[ link to this | view in chronology ]
Re: Where are the lobbyists?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Are you going to replace MyNameHere now that he's found a Gordian knot in his thong?
[ link to this | view in chronology ]
How does it matter? (in answer to the First Word)
The public domain is not about being able to have it in your iTunes play list, it's about being able to play it in a cover-band, to retell the story from a different point of view (Remember Margaret Mitchell's literary estate's attempts to suppress "The Wind Done Gone" a retelling of "Gone with the Wind" from the point of view of the slaves? Yeah, that came out right in the end, but the author of the retelling should never have needed to go to court and pursue appeals), to use elements of the existing culture in new cultural works without permission from someone who purportedly represents the "interests" a long-dead previous contributor to our culture, but is really just after monopoly rents for something that they didn't actually create.
[ link to this | view in chronology ]
[ link to this | view in chronology ]