Posted by: Paul A. Forsyth | January 7, 2014

The Public Domain Day That Would Have Been

As they do every year at this time, last week the folks at Duke’s Center for the Study of the Public Domain released their list of titles that would have entered the public domain in 2014 if Congress had not continuously extended copyright terms starting in 1976. This year’s list features works originally published in 1957. Under the law as it existed prior to the 1976 Copyright Act, those works would receive an initial copyright term of 28 years, renewable for a further 28 years. Some of the titles in this year’s list include Jack Kerouac’s On the Road, Ayn Rand’s Atlas Shrugged, and the film The Bridge on the River Kwai (based on a 1952 novel by Pierre Boulle).

Mike Masnick at Techdirt makes a point that bears repeating (emphases and ellipsis in original):

As you hopefully know, until 1978, the maximum amount of time that work in the US could be covered by copyright was 56 years (you initially received a 28 year copyright term, which could be renewed for another 28 years). That means, back in 1957, everyone who created the works in that list knew absolutely, and without a doubt that their works would be given back to the public to share, to perform, to build on and more… on January 1, 2014 at the very latest. And they all still created their works, making clear that the incentive of a 56 year monopoly was absolutely more than enough incentive to create.

And yet, for reasons that still no one has made clear, Congress unilaterally changed the terms of the deal, took these works away from the public, without any compensation at all, and will keep them locked up for at least another 40 years. At least.

The Constitution gives Congress the 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” (Art. I, sec. 8). That phrase “for limited Times” has not been much of a limit on Congress, and the Supreme Court to date has declined to see in the phrase any effective limit on the length of copyright terms that Congress may legislate. So, at the behest of Disney and a few other large corporate content-owners, Congress just keeps extending the term.

Copyright term

Still, it bears repeating: the stated purpose of copyright law, as spelled out in the Constitution, is to “promote the Progress of Science and useful Arts” — that is, to incentivize authors and other content-creators to create new works. Prior to 1976, the 56-year term was sufficient incentive for every artist and author who was creating new works under the US copyright regime. It was sufficient for Hemingway, Faulkner, and Steinbeck. It was sufficient for Rodgers and Hammerstein, for John Ford, and for Orson Welles. It was sufficient for Robert Frost and for Sylvia Plath. It was sufficient for Gene Roddenberry, not to mention for Isaac Asimov, Robert Heinlein, Arthur C. Clarke, and Frank Herbert during all of their most fruitful periods.

I’m not really angry at SCOTUS for refusing to read into Article One a definite number or upper bound that is not in the text. But I am angry with Congress. (I mean, I’m angry with Congress for lots of things, but this is one of them.)

Cory Doctorow has a pair of posts on Public Domain Day (here and here), and John Mark Ockerbloom has this post, which is worth reading. See also this post from Prof. Althouse.

Finally, on a cheerful note, Alex Wild at Scientific American celebrated Public Domain day releasing 30 of his photographs into the public domain. One of those photographs appears at the top of this post. Many thanks!

Image Credits: (1) Photo by Alex Wild, January 1980. Source: Scientific American and Alex Wild’s website. (2) Graph by Tom Bell, used under a CC BY-SA 3.0 license. Source: Wikimedia Commons.



  1. “And yet, for reasons that still no one has made clear”

    Are they so unclear as all that? “Mickey Mouse.”

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