Happy New Year to all!
Just before and after the first of the new year, I saw a flurry of e-mails and blog posts celebrating this year’s Public Domain Day. January 1 is the day on which all the material whose copyright expired during the previous year officially rises into the public domain and becomes free for all to use and transform into new works without the need to ask anyone’s permission or consider copyright exceptions.
Unfortunately, I have seen a few messages that overreact to Public Domain Day with claims, for example, that all of the works of F. Scott Fitzgerald (who died seventy years ago, in 1940) are in the public domain. If our copyright law was simpler and more oriented toward helping users know what is what, that might be the case. But it is not; our law has developed into a complex web of provisions that shows no concern at all for clear and understandable rules.
The basic situation is that only unpublished works are entering the public domain in the United States right now. No published works will become public domain in the US through the expiration of copyright until 2019 at the earliest (assuming the law does not change on this point between now and then).
This severe restraint on the benefits that Public Domain Day ought to bestow on us are nicely explained by Duke’s Center for the Study of the Public Domain on this website.
Let’s look for a minute at F. Scott. Because he died in December of 1940, his unpublished works do enter the public domain in the United States as of 1/1/11. His published works, however, are another story. If a Fitzgerald work was published between 1920 and 1922, as This Side of Paradise was, for example, it is in the public domain. But any works published in 1923 0r later, such as The Great Gatsby, are still protected. After 1922 (and prior to 1963), a work that was published with copyright notice and the copyright in which was renewed is given a term of 95 years from publication (the initial 28 year term plus a renewal term, after the Sonny Bono Copyright Term Extension Act, of 67 years, ). Thus published works from this time period are protected until at least 2019; — 1923 plus 95 years equals 2018, so works published that year will rise into the public domain on 1/1/2019. The author’s date of death does not make any difference for these works.
This distinction seems designed to confuse librarians and other users of works. An archive of Fitzgerald manuscripts, for example, could digitize and make available those items that were never published, or that were published earlier in F. Scott’s career (like Tales of the Jazz Age). But a manuscript of Gatsby or Tender is the Night is still subject to protection.
If this isn’t confusing enough, the situation is not merely different, but reversed, in some countries. As this blog post explains, Canadian copyright law has a shorter term — life of the author plus fifty years — but protects unpublished works differently. In Canada, the published works of an author who died in 1960 are now PD, while unpublished works by the same author are protected until 2049!
Determining whether or not a work is in the public domain is an unfortunately complex business. Like so much in copyright law, that complexity itself is a discouragement to many worthwhile efforts to make the products of our culture available to future generations.