By Porter Anderson, Editor-in-Chief | @Porter_Anderson
Works by Woolf, Dumas, KiplingAs you may know, what’s described as hundreds of thousands of copyrighted works were released into the public domain today (January 1) in the United States. They include not only books but also Cecil B. DeMille’s film The 10 Commandments, Noël Coward’s musical London Calling! and one of the greatest revenge songs ever written, “Who’s Sorry Now?” the music for which is by Ted Snyder with lyrics by Bert Kalmar and Harry Ruby.
Such a formidable entry into the public domain hasn’t happened in the States in more than 20 years.
And the reason for that exposes one of the more interesting elements of copyright law: while today we tend to worry about instances in which copyright protection is being weakened—as is the case in Canada where the Copyright Modernization Act has severely damaged copyright revenue collection for publishers and authors in the educational domain—there are actually cases in which overly zealous copyright protection is a problem, as well.
In the book industry and here at Publishing Perspectives, you often encounter concerns about “the erosion of copyright” as a grave and growing danger in the digital era. And so it is.
But you’ll find the phrase “erosion of the public domain” most pertinent to today’s news. And that’s because of a 1998 law called the Copyright Term Extension Act, or the Sony Bono Act—named for the entertainer-turned-congressman who died in a skiing accident nine months prior to the act’s passage.
As the staff of the Duke University Center for the Study of the Public Domain writes in an article called “The Incredible Shrinking Public Domain” there have been several steps in copyright legislation in the United States, resulting in the situation today.
We’re bulleting out the center’s text for you here for clarity and to make the progression of changes clearer:
- 1790: “When Congress passed the first copyright law in 1790, the copyright term lasted for 14 years, with the option to renew for another 14 years if the copyright holder was still living.
- Until 1978: “Before 1978, the copyright term was still 28 years from the date of publication, renewable once for another 28 years—but 85 percent of copyrights were not renewed and went immediately into the public domain.
- 1978: “Under the 1976 Copyright Act—which went into effect in 1978—the term became 50 years from the date of the author’s death (with no need to renew to have the full term).
- 1998: “And in 1998, the copyright term was increased to 70 years after the death of the author, and to 95 years after publication for corporate “works-for-hire”, locking up an entire generation of works for an additional 20 years. With these and interim extensions, the copyright term has been extended 11 times in the past 50 years.”
And because that 1998 extension was retroactively applied to works that were then about to go into the public domain, there are works being released today that go all the way back to 1923: they were originally to have entered the public domain two decades ago.
‘The Mickey Mouse Act’
The Duke center researchers report that an astonishing 98 percent of copyrighted material now may be “orphaned”—a term that means no rights holders can be found or identified for these works. Studies, the center reports, indicate that only 2 percent of works now between 55 and 75 years old still have commercial value. So no one is benefitting from their protected status, “while the entire public,” writes the center’s staff, “loses the ability to adapt, transform, preserve, digitize, republish, and otherwise make new and valuable uses of these forgotten works.”
Glenn Fleishman wrote the Bono Act at The Atlantic in April, in a reflection of how the late Rep. Bono–who represented California’s 44th district—is understood to have been driven primarily by Hollywood’s interest in longer protections.
This is how the Sonny Bono Act got another, less felicitous nickname for itself: The Mickey Mouse Act.
“The Sonny Bono Act,” Fleishman writes, “was widely seen as a way to keep Disney’s Steamboat Willie from slipping into the public domain, which would allow that first appearance of Mickey Mouse in 1928 from being freely copied and distributed. By tweaking the law, Mickey got another 20-year reprieve. When that expires [in 2024], Steamboat Willie can be given away, sold, remixed, turned pornographic, or anything else.”
And in an insightful opinion piece, The New York Times’ editorial board on February 21, 1998, wrote:
“What vexes any discussion of copyright is the idea of benefit. It is easy to see what the Disney Corporation will lose when Mickey Mouse goes out of copyright, as he will within a few years. It is harder to specify what the public will lose if Mickey Mouse does not go out of copyright.
“The tendency, when thinking about copyright, is to vest the notion of creativity in the owners of copyright. But artists, including those who work for places like Disney, always emerge from the undifferentiated public, and the works in the public domain, which means nearly every work of any kind produced before the early 1920’s, are an essential part of every artist’s sustenance, of every person’s sustenance. So far, Congress has heard no representatives of the public domain. It has apparently forgotten that its own members are meant to be those representatives.”
As for books, in particular, the Duke center’s Balfour Smith’s research has produced a helpful list, according to which some of the works today being released into the public domain include:
- Jacob’s Room, Virginia Woolf
- Maestro-Don Geusaldo, Giovanni Verga, translated by DH Lawrence
- Ivanhoe, Walter Scott, illustrations by Frank E. Schoonover
- Heidi, Johanna Spyri, illustrations by Gustaf Tanggren
- The Prospects of Industrial Civilization, Bertrand Russell
- Bel Ami, Guy de Maupassant
- If Men Played Cards as Women Do, George S. Kaufman
- The Three Musketeers, Alexandre Dumas
- The Prophet, Kahlil Gibran
- Dead Souls, Nikolay Gogol
- Land and Sea Tales for Boys and Girls, Rudyard Kipling
- Where Are We Going?, David Lloyd George
- Harmonium, Wallace Stevens
- The Murder of Roger Ackroyd and The Murder on the Links, Agatha Christie
- St. Joan, George Bernard Shaw
- Towards a New Architecture, Le Corbusier (Charles-Édouard Jeanneret)
- Whose Body?, Dorothy L. Sayers
‘The Second Part of the Copyright Bargain’
In arguing its case, the Duke center’s messaging takes care to counter any suggestion that its policies are in some way anti-copyright.
Public domain is “the second part of the copyright bargain; the limited period of exclusive rights ends and the work enters the realm of free culture.”Duke University Center for the Study of the Public Domain
“Does all this mean that copyright is a bad system?” we read in the center’s material. “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.”
And in honor of this important “Public Domain Day” in the States, we leave you with four verses that are among the best-loved poetry of the American canon.
Robert Frost’s 1922 “Stopping by Woods on a Snowy Evening” was published in 1923, renewed by Frost in 1951, and then copyrighted in 1969 by Henry Holt and Company as part of The Poetry of Robert Frost, edited by Edward Connery Lathem.
Before today, this poem technically couldn’t be fully quoted in a formal publication without permission of the publisher. Now, it can.
Stopping by Woods on a Snowy Evening
By Robert Frost
Whose woods these are I think I know.
His house is in the village though;
He will not see me stopping here
To watch his woods fill up with snow.
My little horse must think it queer
To stop without a farmhouse near
Between the woods and frozen lake
The darkest evening of the year.
He gives his harness bells a shake
To ask if there is some mistake.
The only other sound’s the sweep
Of easy wind and downy flake.
The woods are lovely, dark and deep,
But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep.
More from Publishing Perspectives on copyright is here.