All Of These Works Should Be In The Public Domain, But Aren't
January 6, 2015 11:48 AM   Subscribe

'Every year for the past few years, Duke's Center for the Study of the Public Domain has put up a list of works that should have gone into the public domain on January 1st'. Should have, that is, 'had Congress not massively expanded the law. As a reminder, when these works were created, the creators knew the terms under which they were created and knew that they would have gone into the public domain by now -- and they found that to be more than enough incentive to create those works.' 'Current US law extends copyright for 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years—an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1958 would enter the public domain on January 1, 2015, where they would be “free as the air to common use.” Under current copyright law, we’ll have to wait until 2054. And no published works will enter our public domain until 2019. The laws in other countries are different—thousands of works are entering the public domain in Canada and the EU on January 1.'

"Most of the works highlighted here are famous—that is why we included them. And if that fame meant that the work was still being exploited commercially 28 years after its publication, the rights holders would probably renew the copyright. (This is true for most of the works featured on this page, though even the shorter copyright term exceeds the commercial lifespan of a surprising percentage of successful works.) But we know from empirical studies that 85% of authors did not renew their copyrights (for books, the number is even higher—93% did not renew), since most works exhaust their commercial value very quickly.

Under the law that existed until 1978 . . . Up to 85% of all copyrighted works from 1986 might have been entering the public domain on January 1, 2015.
That means that all of these examples from 1958 are only the tip of the iceberg. If the pre-1978 laws were still in effect, we could have seen 85% of the works published in 1986 enter the public domain on January 1, 2015. Imagine what that would mean to our archives, our libraries, our schools and our culture. Such works could be digitized, preserved, and made available for education, for research, for future creators. Instead, they will remain under copyright for decades to come, perhaps even into the next century."

'What a trove of books—imagine these being freely available to students and educators around the world. You would be free to translate these books into other languages, create Braille or audio versions for visually impaired readers (if you think that publishers wouldn’t object to this, you would be wrong), or adapt them for theater or film. You could read them online or buy cheaper print editions, because others were free to republish them.'

It applies to books as much as to music, film, scientific papers and other published works which are supposed to enrich our culture and encourage inspiration and participation. 'A distressing number of scientific articles from 1958 remain behind paywalls, including those in major journals such as Science and JAMA. You can’t read these articles unless you pay or subscribe. And the institutional access that many top scientists enjoy is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions. It’s remarkable to find scientific research from 1958 hidden behind publisher paywalls.'

'Perhaps the most troubling aspect of the current copyright term is that in most cases, the cultural harm is not offset by any benefit to an author or rights holder. Unlike the famous works highlighted here, the vast majority of works from 1958 do not retain commercial value, but they are presumably off limits to users who do not want to risk a copyright lawsuit. This means that no one is benefiting from continued copyright, while the works remain both commercially unavailable and culturally off limits. The public loses the possibility of meaningful access for no good reason.'
posted by VikingSword (51 comments total) 53 users marked this as a favorite
 
What a mess, by 2054 the genetic engineering is going to make the idea of a 50 foot tall woman positively quaint. 70 foot tall women won't be able to appreciate the film at all as anything but a historical oddity.
posted by Drinky Die at 11:52 AM on January 6, 2015 [5 favorites]


ROT13 is free of restrictions upon use, yes?

Shpx Qvfarl !
posted by lalochezia at 11:58 AM on January 6, 2015


With the Sonny Bono extension to 95 years on commissioned work, you can live a long life of 90 years and never see that work enter the public domain during your long life, from the time of birth to your death. Copyright laws were passed to grant a temporary monopoly on commercial exploitation for the express purpose of encouraging creation so that the whole society may benefit, including the time when these works become freely available. There is something terribly wrong when you can live a very, very long life and never see these works enter the public domain, ever - how are you supposed to participate in the benefits of public domain when your life is not long enough to make it even a possibility - that is assuming that you even have the strength and faculties left to create past your 95th birthday.
posted by VikingSword at 12:02 PM on January 6, 2015 [9 favorites]


There's a good article in the Washington Post from October on this issue.

Mickey Mouse is due to enter the public domain in 2023, and so we can assume that there will be another lobbying push before 2019 to extend the copyright laws once again. I'm optimistic that this time there will be much more opposition, both from the general public and from Silicon Valley, and in my wildest dreams I'd like to believe that the 1998 copyright extension might even be rolled back -- but realistically I imagine the best we can hope for is that the status quo will be preserved.
posted by crazy with stars at 12:05 PM on January 6, 2015 [3 favorites]


I find it important at a time like this to link to Spider Robinson's story "Melancholy Elephants.
posted by mephron at 12:06 PM on January 6, 2015 [6 favorites]


I don't understand why Disney so jealously guards Mickey Mouse's "copyright" when surely trademark protection makes it impossible for others to utilize his image.
posted by Mr.Encyclopedia at 12:12 PM on January 6, 2015 [2 favorites]


and from Silicon Valley,
crazy with stars

I don't know about that. By then, if they're still around, the tech giants of today will be the same kind of entrenched powers that Disney and other media titans are today. With Amazon, Netflix, Google, etc getting into the content business, I can definitely see them coming to sing Disney's tune on this issue.
posted by Sangermaine at 12:17 PM on January 6, 2015 [2 favorites]


Trademark shouldn't even be lumped in with "Intellectual Property". It's supposed to be a consumer protection measure. But once they expanded the definition of trademark dilution, it became a veto on culture.

This is why I pirate.
posted by ChurchHatesTucker at 12:18 PM on January 6, 2015 [6 favorites]


> With the Sonny Bono extension to 95 years on commissioned work, you can live a long life of 90 years and never see that work enter the public domain during your long life, from the time of birth to your death. Copyright laws were passed to grant a temporary monopoly on commercial exploitation for the express purpose of encouraging creation so that the whole society may benefit, including the time when these works become freely available. There is something terribly wrong when you can live a very, very long life and never see these works enter the public domain, ever - how are you supposed to participate in the benefits of public domain when your life is not long enough to make it even a possibility - that is assuming that you even have the strength and faculties left to create past your 95th birthday.

I think it's because (in part) copyright has evolved to being equated with ownership, and infringement has been equated with theft of physical property. If copyright is the same as actually owning something, and infringement is actually stealing something that belongs to someone, it makes almost no sense to have copyright expiration. It would be like the government deciding that you have temporary ownership of a car that gets transferred to the public domain over time, and you can't leave it to your grandchildren. That last example rightly grates, and the closer we make the analog to intellectual property, the less sense it makes sense to have expirations, even if it's for the public good. Copyright infringement is serious business, but I think we've made the rigid comparison to theft to the detriment of its original intent and the public good.

Now, if copyright was more like being granted a temporary monopoly on something to primarily encourage incentive to create public goods and art...
posted by SpacemanStix at 12:18 PM on January 6, 2015 [5 favorites]


The flip side to this is that if we want to make copyright the same as owning something that can be stolen, we should probably be furious that the government sanctions any sort of expiration at all.
posted by SpacemanStix at 12:29 PM on January 6, 2015


Mickey Mouse is due to enter the public domain in 2023, and so we can assume that there will be another lobbying push before 2019 to extend the copyright laws once again.

Why don't we start an organization, a movement even, that is dedicated to forcing Mickey Mouse back into the public domain? I can't think of any better way to make the abstract issue of corporatization of cultural and intellectual property seem concrete and personal to people than to take dead aim at Mickey Mouse.
posted by jonp72 at 12:39 PM on January 6, 2015 [3 favorites]


Of the people, by the people, for the people

Imjustsayin'.
posted by humboldt32 at 12:41 PM on January 6, 2015


I want to start an organization of copyright restoration, so that works currently in the public domain suddenly become the property of their creator's heirs. It would be suitably absurd.
posted by Thing at 12:47 PM on January 6, 2015 [1 favorite]


This is what will drive corporate development of some form of the singularity. The big S is defined to be a person, S creates content, S never dies, thus " 70 years after the date of the author’s death" becomes essentially infinite.
posted by sammyo at 12:49 PM on January 6, 2015 [1 favorite]


The last thing we need in this culture is more spinoffs/mashups/"reimaginings" of existing works.

There is nothing of substance within the person of Mickey Mouse that would benefit anyone by being freed into the public domain.

pls make new characters tia
posted by overeducated_alligator at 12:56 PM on January 6, 2015 [1 favorite]


There is nothing of substance within the person of Mickey Mouse that would benefit anyone by being freed into the public domain.

I want to make a derivative work called Mickey Moose.
posted by SpacemanStix at 1:00 PM on January 6, 2015


The thing is, I don't even care about Mickey Mouse (or Steamboat Willie - good luck trying to sort out trademark issues with Mickey Mouse). Disney can have him, along with Winnie the Pooh (where the real copyright issues apparently lie). I'd like the rest of the stuff - the stuff that no one cares about, the anonymous orphan works, the priceless but unmarketable jazz and classical recordings, to come back to the public.

There are so many simple proposals to fix this, and anything would be better than the status quo. I'd even be prepared to accept indefinite annual copyright extension with a $1 fee per work - if you care enough to file the paperwork every year and send in your dollar, you can keep it. But give us the rest of it to use, instead of locking it away.
posted by RedOrGreen at 1:05 PM on January 6, 2015 [15 favorites]


I thought it was neat/appropriate to see that Melancholy Elephants had been released under a Creative Commons license. But, it's no-derivative-works which is ... black humor? Grotesque irony? Missing the point entirely?
posted by solitary dancer at 1:10 PM on January 6, 2015 [2 favorites]


The last thing we need in this culture is more spinoffs/mashups/"reimaginings" of existing works.

There is nothing of substance within the person of Mickey Mouse that would benefit anyone by being freed into the public domain.

pls make new characters tia


If existing characters were no longer protected by copyright, you'd see more new characters being created by the big media companies because it would suddenly be way less profitable to rely on Mickey Mouse or Batman or whatever since there'd be a bunch of other companies making their own derivative works and merchandise.
posted by Holy Zarquon's Singing Fish at 1:10 PM on January 6, 2015 [5 favorites]


If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.
posted by empath at 1:18 PM on January 6, 2015 [5 favorites]


I miss the days when people talked about "copyright held by" instead of "copyright owned by". You're only supposed to get to hold it for a limited time, after which it is relinquished and belongs to everyone.
posted by fings at 1:24 PM on January 6, 2015 [2 favorites]


In discussions of copyright law, people always talk about specific works. They get hung up on ownership of specific movies or books. But, I think the real issue with copyright law is about the worlds implied by the works.

Worlds should never be copyrighted. They are just lists of facts (names, places, etc.) and everywhere else, a list of facts cannot be copyrighted. People would create movies and own those movies, but they wouldn't own the fantasy worlds depicted in those movies.

I dream of a day when Frank Miller or Quentin Tarantino could direct their own version of Star Wars without needing to get permission from Disney.
posted by HappyEngineer at 1:25 PM on January 6, 2015 [4 favorites]


"There is nothing of substance within the person of Mickey Mouse that would benefit anyone by being freed into the public domain. pls make new characters tia"

And yet, that's how we make new characters, by incorporating pieces of the world around us, our lived experiences. Fencing off Mickey Mouse doesn't just prevent boring carbon copies you're not interested in. It also prevents the person, who created something that was inspired by the person who created something that was inspired by something that was too close to Mickey Mouse to be allowed, from making the new character you want.

My view is that fanfiction is a modern continuation of centuries and millenia of living cultural tradition, and that strong intellectual property laws are doing their best to smother that tradition. And there are more harms done by strong intellectual property laws than just cartoons and novels. Look at science research and journals, for instance.
posted by solitary dancer at 1:26 PM on January 6, 2015 [3 favorites]


And yet, that's how we make new characters, by incorporating pieces of the world around us, our lived experiences. Fencing off Mickey Mouse doesn't just prevent boring carbon copies you're not interested in. It also prevents the person, who created something that was inspired by the person who created something that was inspired by something that was too close to Mickey Mouse to be allowed, from making the new character you want.

"Too close to Mickey Mouse to be allowed"? What do you have in mind? I mean, look at Family Guy and the Simpsons -- it's become a bad joke how close the characters are to each other. Very similar characters/stories (and outright ripoffs) happen all the time. Mickey not being in the public domain is not inhibiting anyone from making even an almost-identical mouse-in-short-pants character.
posted by overeducated_alligator at 1:32 PM on January 6, 2015


I think that much of the change in public perception about copyright has philosophical (and perhaps theological) underpinnings. When you hear some authors speak about writing (including Stephen King), they talk about how they "discover" their ideas and works, as if they have lives of their own that you unearth through a mining effort called writing, or painting, or whatever. This is consistent with certain historical realist notions in philosophy that there are properties or universals out there, notions of beauty, forms of stories, that exist in an immaterial way (perhaps in the mind of God) that we discover through a creative process. As such, the arts are about discovery and then about instantiating that discovery in a material way. We might be considered stewards of that discovery more than we are owners of it.

As we've moved away from a notion that we discover truths and beauty in any sort of a universalist or immaterial sense, and move more towards philosophical naturalism and how that material can be modified, a lot of what we do in art is now creating, and as such, that creation is mine because it came from my mind via my efforts ex nehilo. It makes sense, then, that I own this thing more than it being a thing that was discovered and already in the public domain of reality. The distinction between discovering beauty or truth and creating it is an important one that I think has influenced discussion of copyright, even if we don't use these terms outright. They are concepts that have sat underneath our historical intuitions regarding how we should think about ownership vs. stewardship when it comes to copyright.
posted by SpacemanStix at 1:40 PM on January 6, 2015 [3 favorites]


The US political system lets a minority who cares a lot outweigh a majority who cares a little. This is also the reason there is no effective gun control laws in the US.
posted by Triplanetary at 2:49 PM on January 6, 2015 [2 favorites]


> I mean, look at Family Guy and the Simpsons -- it's become a bad joke how close the characters are to each other.

Heck, look at Family Guy and American Dad. Seth MacFarlane could probably sue himself and win.
posted by benito.strauss at 4:01 PM on January 6, 2015


Well, the whole family sitcom genre animated or not is full of cliches.
posted by Drinky Die at 4:12 PM on January 6, 2015


They'd acquit on American Dad because that show actually sort of has characters instead of just drawings saying mean things at each other
posted by DoctorFedora at 4:14 PM on January 6, 2015 [1 favorite]


"There is nothing of substance within the person of Mickey Mouse that would benefit anyone by being freed into the public domain. "

That's the wrong way to think about copyright and the benefits of public domain, at least in this instance. The benefits of having Mickey Mouse revert to the public domain would be that vast amounts of Mickey Mouse material would be available for everyone from enthusiasts to scholars, and would involve more people able to see Mickey Mouse and think about his impact on them and on culture, broadly. The benefit to public domain isn't my Mickey/Horace Horsecollar slash-fic, it's being able to see out-of-print Mickey Mouse cartoons and the ability to encounter Disney properties without the Disney gatekeeper.

Stop getting apoplectic about mashups and making inane pronouncements based on a myopic view of copyright.
posted by klangklangston at 5:52 PM on January 6, 2015 [2 favorites]


Also works entering the public domain allow us access to works the former copyright holder don't want us to see.
posted by Mitheral at 5:57 PM on January 6, 2015 [1 favorite]


I want to start an organization of copyright restoration, so that works currently in the public domain suddenly become the property of their creator's heirs.

Uruguay Round Agreements Act. "Its effect is to give United States copyright protection to some works that had previously been in the public domain."
posted by stbalbach at 5:59 PM on January 6, 2015 [1 favorite]


I usually try to make it to 5 minutes of arguing about copyright with well-meaning friends and relatives before I inevitably cave in and deploy the clincher -- not Mickey Mouse, but Happy Birthday to You. It's amazing how few people realize that's still under copyright. What, no, Happy Birthday? they ask. Then they scratch their heads when I ask them whether they've ever seen it sung on TV or in a movie, furrow their brows, Huh. In the end we usually come to some compromise number of years before copyrights ought to expire, and Happy Birthday usually buys me about 50.
posted by chortly at 6:16 PM on January 6, 2015 [5 favorites]


The copyright extensions were aristocratic blood sucking privilege. It's not called "royalties" for nothing. Another extension and there will be the quiet violence of the computer to recon with.
posted by stbalbach at 6:27 PM on January 6, 2015


Mickey not being in the public domain is not inhibiting anyone from making even an almost-identical mouse-in-short-pants character.

No. But suppose that I am interested in the history of animation. And suppose that I wish to publish a short anthology of carefully selected prewar magazine articles about Mickey Mouse.

That is (an example of) what 95-year copyright terms inhibit.
posted by compartment at 7:30 PM on January 6, 2015 [4 favorites]


Intellectual property laws are one of the major reasons for the transfer of wealth to the 0.1% from everyone else.

Retroactive copyright extension really gives away the game. They do nothing to encourage the creation of future works. They are simply a demonstration by the moneyed class of raw political power to transfer citizens' earnings to corporate interests using government force.

This is how inequality arises, among other methods.
posted by JackFlash at 8:32 PM on January 6, 2015 [6 favorites]


The level of American exceptionalism involved in these discussions always annoys me. The old American system worked reasonably well within the US, but it could be a nightmare for authors from other countries - look at how Tolkien's US copyright on The Lord of the Rings was disputed in the 1960s. Even then, the system only worked as well as it did because the US was the only country using it: if US authors had to actively register copyright in every other country they would have seen how onerous and bureaucratic it was.

This business of constantly blaming Disney seems to ignore how much simpler it was for the rest of the world when the US finally became a party to the Berne Convention. Even the change from life+50 years to life+70 originated in Germany, in an attempt to make up for royalties lost under the Nazi regime.

I wish people were more prepared to separate the application of copyright and the length of copyright as issues for discussion. I think the Berne Convention system of automatic copyright is far better than the old US system of having to actively register and renew, but I also think that life+70 is ridiculously long, and would favour reducing it to life+20.
posted by Azara at 2:05 AM on January 7, 2015 [1 favorite]


The takings clause of the Fifth Amendment states that private property cannot be taken for public use without just compensation. It's a pity there isn't a corollary that public property can't also be taken for private use, because that seems to be precisely the case here.
posted by Gelatin at 5:41 AM on January 7, 2015 [1 favorite]


(I've also thought the takings clause should be used to just pay off the holders of the copyright to "Happy Birthday to You" and just make it public domain already.)
posted by Gelatin at 5:42 AM on January 7, 2015


Stop getting apoplectic about mashups and making inane pronouncements based on a myopic view of copyright.

No argument from me about the way copyright inhibits scholarship. For example right now there's a supposedly great biography of Ward Kimball that Disney is stifling because they disapprove of the (factual) content; and they're strongarming the author by preventing the use of copyrighted artwork as illustrations.

I take issue with the idea that copyright somehow inhibits the creation of new, original work. People on the internet say this all the time.
posted by overeducated_alligator at 6:40 AM on January 7, 2015


I'm sure there are important reasons to do so, but it doesn't seem very nice to put stories into brains and forbid them to go wild with those stories for the next 95 years.
posted by Ashenmote at 7:06 AM on January 7, 2015 [1 favorite]


I wish people were more prepared to separate the application of copyright and the length of copyright as issues for discussion. I think the Berne Convention system of automatic copyright is far better than the old US system of having to actively register and renew, but I also think that life+70 is ridiculously long, and would favour reducing it to life+20.

I almost never see anyone arguing we should go back to registration - it's a good point that changes weren't just driven by US stakeholders, but the issue is pretty much about length.
posted by atoxyl at 7:07 AM on January 7, 2015


I take issue with the idea that copyright somehow inhibits the creation of new, original work. People on the internet say this all the time.

Doesn't it, though? Copyright creates incentives for authors to stick with established properties by giving them a monopoly on their use. Disney wouldn't be planning an onslaught of new Star Wars movies, TV, books, etc. if they didn't have exclusive rights to make new Star Wars things.
posted by Holy Zarquon's Singing Fish at 7:56 AM on January 7, 2015 [1 favorite]


Copyright creates incentives for authors to stick with established properties by giving them a monopoly on their use.

I understand what you're saying here, but in Disney's case, their most profitable merchandising arises out of the "Disney Princesses," half of whom are public-domain characters that anyone is free to work with. If someone wants to make their own movie of Beauty and the Beast, Cinderella, Aladdin, The Little Mermaid, Rapunzel, etc. etc. etc., they are free to do so. The insidious thing about Disney to me is not that they legally own the story of Cinderella in any meaningful way, it's that they are such a marketing juggernaut that they take metaphysical ownership over the story, making their version THE DEFAULT in the minds of children. "Cinderella" ceases to be a public-domain folktale and becomes a particular blonde cartoon woman in a light-blue dress. That's a function of the unregulated capitalist might of the Disney corporation, not a function of who owns or doesn't own the story.
posted by overeducated_alligator at 9:24 AM on January 7, 2015 [5 favorites]


People who argue that copyright is an incentive to creativity do not appear to be arguing in good faith as the retroactive increase in copyright demonstrates. Retroactive copyright increases cannot possibly create an incentive for creativity without a time machine. One might plausibly argue that an increase in copyright duration is an incentive for future creativity (although that is debatable). But a retroactive increase in duration cannot possibly increase the incentive for works created in the past. It is simply wealth transfer by government mandate.

Retroactive copyright increases are a government enforced tax on consumers, handing over billions of dollars to Disney simply because they have lobbyists with enough money to bribe politicians. It has nothing to do with creativity.
posted by JackFlash at 9:38 AM on January 7, 2015 [3 favorites]


People who argue that copyright is an incentive to creativity do not appear to be arguing in good faith as the retroactive increase in copyright demonstrates.

That's a pretty thin thread on which to hang a condemnation of everyone who supports copyright. It's quite possible to believe that copyright is an incentive to creativity without supporting retroactive extensions of it. It's also quite possible to support retroactive copyright increases for the sake of administrative simplicity. The world is not divided into copyright abolitionists and supporters of eternal copyright.
posted by moss at 4:30 PM on January 7, 2015


in Disney's case, their most profitable merchandising arises out of the "Disney Princesses," half of whom are public-domain characters that anyone is free to work with.

Impossible! They have no incentive to create!
posted by ChurchHatesTucker at 11:33 AM on January 8, 2015




Robert Reich on TPP: The Worst Trade Deal You Never Heard Of
posted by homunculus at 8:44 PM on January 31, 2015 [1 favorite]


The Truth behind TTIP
posted by jeffburdges at 5:37 AM on February 3, 2015




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