What is, what could have been, and what should be done

[NB — Sharp-eyed readers have pointed out correctly that the authors listed in the first paragraph (at the *) all died in 1963, not 1943.  The list should have included Stephan Vincent Benet, Simone Weil, Radclyffe Hall, Beatrix Potter and R.G. Collingwood as those who died in 1943 and whose works, therefore, would be entering the public domain except for the oddities of U.S. law.  I apologize for the overly-hasty research that led to the mistake, and am grateful to those who pointed it out.]

January 1st of each year is celebrated by the geeky few who track such things as “Public Domain Day.”  That is because the works whose copyrights expired in the previous year officially enter the public domain, through a convention adopted into the copyright laws of most nations, on January 1 of the following year.  Thus, on January 1, 2014, works written by authors who died in 1943 (2013 minus 70) should enter the public domain, and do so in most countries.  Thus this year should be the beginning of free public use of works written by Robert Frost, C.S. Lewis, Sylvia Plath, W.E.B. DuBois and many others*.

Unfortunately, the various ways in which Congress revised our copyright law in the U.S. have created a ridiculous anomaly — no published works enter the public domain at all here in America until 2019 (assuming the law is not tinkered with again).  That is because under the 1976 Copyright Act, which took effect on January 1, 1978, all works that were already subject to copyright protection at that time, which was any published work that had been published, with copyright notice, after 1922 (1978 minus 56, which was the previous maximum copyright term), were simply given a 95 year term of protection.  Thus, in the U.S., no copyrights will expire for published works before January 1, 2019, when works published in 1923 will become PD.

So while many works of authors who died in 1943 became PD in other countries, in the U.S. only unpublished works by such authors rose into the public domain.  Those unpublished works are subject to the general life plus 70 term of the current U.S. copyright law, even though works published prior to 1978 are not.

That is the situation as it is, and you can read more about it on this page from Duke’s Center for the Study of the Public Domain, as well as this post on the TechDirt site.

To explore even more fully what might have been, the Center for the Study of the Public Domain also provides us with details about what could have been in the U.S. public domain if we had preserved the 56-year maximum term of protection that was the law prior to 1978.  Under that rule, works published in 1956 would be entering the public domain this year, including books by Jack Kerouac, Ayn Rand, Samuel Beckett and, my personal favorite, Margaret and H.A. Rey (if you don’t recognize this pair, think about an inquisitive monkey).

This year, we also received a timely reminder that the public domain is not as automatic as we might think; it requires attention if it is to flourish and be preserved.  On December 23, 2013, a judge in the District Court for the Northern District of Illinois issued a ruling that confirmed the fact that Sherlock Holmes (another favorite literary character of mine) is in the public domain.

Arthur Conan Doyle wrote four Sherlock Holmes novels and fifty-six short stories.  All but ten of the stories were published prior to 1923.  Nevertheless, the Conan Doyle Estate, Ltd. has continued to demand that anyone using the Sherlock Holmes character, as many authors wish to do, pay for a license.  When author Leslie Klinger and his publishers got such a demand, Klinger filed a lawsuit seek a declaratory judgment from the District Court that Sherlock belong to all of us.  The Conan Doyle estate argued that the Holmes character continued to evolve and develop right up through the last story, so that the character itself would not enter the public domain until that final story, published in 1927, does (which would be January 1, 2023).

Judge Ruben Castillo of the District Court in Chicago ruled, following substantial precedents, that the character of Sherlock Holmes, as he has been delineated in the four novels and 46 stories that clearly are PD, is also “free as the air for everyone to use.”  Only elements of the character that were added anew in those last 10 stories, elements such as Dr. Watson’s second marriage and Holmes’ retirement from his practice as a consulting detective, are still subject to protection.  But, according to Judge Castillo, all of the “Pre-1923 Story Elements,” which are more than sufficient for new authors to create stories featuring Holmes, are in the public domain.  He rejected the argument from the Conan Doyle Estate that Holmes was such a complex character that the earlier precedents, involving, they said, “flatter” and less richly delineated  characters, should not apply.  Such a rule, Judge Castillo pointed out, is to nebulous and difficult to apply; he decided to stick with the “increments of expression” rule about which aspects of a character are protected once some stories about that figure rise into the public domain.

So as we reflect on what is the situation regarding the public domain in the U.S., and what might have been, it is also important to recall what needs to be done.  There are lots of interested parties out there, like the Conan Doyle Estate, that will keep trying to sell that which should be free.  Just because someone offers, or even demands, a licensing transaction does not mean that such a transaction is required.  Users, including new creators who are building on work that has gone before (as all do) need to be vigilant and protect their rights, as Mr. Klinger decided to do.  We can easily fall into a false but happy belief that the public domain is automatic, a self-executing realm of free stuff.  But it is not; it requires attention and often direct action to ensure that our shared culture is fairly available to all without the extra-legal rules and fees that many would apply to narrow the scope of the public domain for the purpose of private gain.

For more detail about the public domain, legal regimes that have impoverished it, and pro-active efforts to protect and expand the canon of works freely available to the public, reading this article by Jennifer Jenkins, Director of Duke’s Center for the Study of the Public Domain, is a great way to cap one’s observance of Public Domain Day.

5 thoughts on “What is, what could have been, and what should be done”

  1. Fabulous piece, Kevin! In my experience the defenders of intellectual property focus on the right of the creator to make a profit. But protecting the rights of the great-grandchildren of the creator–or someone who just bought a work they never had any hand in producing–how can that group’s right trump the right of the public to use part of their cultural heritage?

  2. You’re ignoring the elephant in the room, as almost everyone commenting on this topic does:

    The Berne Convention.

    If the US drops its copyright term below life plus 50, we become a rogue nation in the world of IP. And when we do that, all of our IP: patents, copyrights, trademarks becomes fair game for the rest of the world.

    Think of it: drugs, machinery, software — billions upon billions of dollars in rights income vanishing.

    We could try to change Berne, but it would probably be easier to solve the MidEast Peace problems.

    That being so, do you really feel that the difference between life plus 50 and life plus 70 is worth the fuss? The vast majority of works covered are of no use or interest to anyone anywhere.

    And how much of a problem would this whole issue be, if you could easily track the rights-holders and acquire permission to use the work? THAT’s our real issue.

    Let’s work together to get a rights database that gives holders an incentive to keep their contact information accurate.

    The current database in the copyright office only lists the original filer, not later holders, and status of licenses. And the contact information is usually out of date within a few years of filing.

    If it were used for clearing permissions on some standard transactions, processing (micro-) payments for those standard transactions per the rates set by holders, and for taxing those payments, then both the holders and the IRS would have an incentive to work with this information.

    And if it took a 5 or 10% commission on every transaction it processed, it would be self-supporting.

    That sounds to me as if it would be win-win-win, and very do-able. If only we could get someone with deep pockets to start it up.

  3. A regular reader of this blog could hardly accuse me of ignoring the Berne Convention. But I do think there are issues here that are not solve simply by invoking it.

    First, I am not complaining, in this post at least, about things that are protected by the new term in the U.S. — life plus seventy years, in conformity with Berne (plus a bit more). The problem I am pointing out here is that often items that have gone into the public domain under the older copyright regime, before the U.S. joined Berne, are still being made the object of copyright demands. This happens because the math is complex and the evidence (such as about renewal, for instance) difficult to find. But the result is that rights holders or collective rights organizations often demand royalties they are not entitled to and threaten litigation as a way to prevent perfectly legal uncompensated uses. That is the point of the Sherlock Holmes case.

    Second, the U.S. is NOT observing the life plus seventy rule for works published between 1923 and 1963, which are the works we are talking about here. Instead, Congress just slapped a 95 year term on everything that was subject to protection at the time the new copyright act took effect. So the anomalous situation is that works from other countries that go into the public domain in their countries of origin according to Berne, such as Joyce’s Ulysses in 2012, may still be protected in the U.S. No published work is going in to the PD in the U.S. until 2019, and that is NOT what the Berne Convention mandates.

    Finally, there are lots of ways we could improve the situation here in the U.S. without rejecting or modifying Berne, if we had the political will. Just as an example, it would probably be legal, under Berne, to impose a renewal requirement of some kind on U.S. citizens that hold copyright. Article 5 of Berne is pretty clear that the absence of formalities must apply only to authors from “countries of the Union other than their country of origin,” so a nation could impose formalities on its own citizens, just not on citizens of other Berne signers.

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