February 16, 2018

Can We Strengthen Our Fragile Public Domain? | Peer to Peer Review

Kevin L. SmithEach year the copyright community celebrates January 1 as “Public Domain Day.” That is because a convenient fiction included in most nations’ copyright laws says that if a work’s term of protection expired during the previous year, it officially enters the public domain on the following January 1. Instead of having to figure out the exact day of an author’s death, and having different works enter the public domain each day, we just save them all up, so that all the works whose term expired in 2014 (i.e., all works whose authors died 70 years earlier, in 1944) entered the public domain on New Year’s Day 2015.

At least, they did in most other countries, but not in the United States. Because of the bizarre arithmetic of our copyright term, published works that entered the public domain elsewhere this year remain locked in copyright in the United States. When we changed our copyright term in 1978 to life plus 50 years—and later, 70 years—we did so only prospectively. Works published prior to that date were still within the older term of copyright and were simply granted a 95-year term from the original date of publication. The result is that nothing except unpublished works enters the public domain in the United States these days. Not until January 1, 2019, 95 years after publication for works published in 1923, will we begin to see “new” published works in our public domain (assuming the term is not extended again).

Consider The Little Prince, by Antoine de Saint-Exupéry. It was first published in 1943, and its author died in 1944. Because of Saint-Exupéry’s untimely death while flying a reconnaissance mission for the Free French during World War II, The Little Prince entered the public domain last month in most other life-plus-70 nations, just 71 years after it was published. But in the United States, it remains protected for an additional 24 years, until January 1, 2039.

This clamp that the United Statse has placed on its own public domain is frustrating, but it is only part of the problem. Another change in our copyright law, the move to automatic protection, which took place in stages between 1978 and 1989, also plays a huge role in impoverishing the body of material available for free use. Since everything is protected automatically, creators cannot dedicate their work to the public through benign neglect of copyright formalities, as used to be possible. There are, of course, public domain licenses like Creative Commons 0 that purport to put works into the public domain, but this post from Public Knowledge (PK) raises an important question about how reliable such public domain dedications really are. The problem, explained in detail by PK, is that U.S. law provides for a 35-year termination of any license that a creator has imposed on his or her work. This mechanism (found in section 203 of the copyright law) is designed to give a creator or his or her heirs a second chance to capture the value of a work, but it means that a license dedicating a work to the public domain, or any other type of open license, may not actually be permanent even when it says it is irrevocable.

So a creator cannot simply avoid copyright, even if he or she believes it will be better for their own interests, or for the community they are addressing, to do so. And a license that creator might use to communicate an intent to dedicate the work to the public domain may not actually provide the kind of certainty a subsequent user who wants to build on the first work might need. What could be done to ameliorate this situation?

One idea, suggested by John Bergmayer in the PK post linked above, is to make it easier to dedicate a work to the public domain. Small changes to section 203 could make the termination right inapplicable to a dedication to the public domain. Such an amendment would be in keeping with the concept of the public domain as a secure source of cultural resources available to anyone, and it would recognize that the public interest is paramount in copyright. The economic rights enshrined in copyright are utilitarian in purpose; they are supposed to provide an incentive to create. The idea that a work might be much more valuable than anticipated after 35 years, which lies behind the idea of termination, might add some incremental supplement to that incentive, but it seems illogical to allow the application of that termination if the creator herself has elected to dedicate the work to the public.

A less direct, but more broadly beneficial, approach to the problem of our incredible shrinking public domain, however, would be to shorten the term of protection. There is no reason we need a term of life of the author plus 70 years; we could remove those final 20 years by repealing the silly Sonny Bono Copyright Extension Act and still remain in compliance with our international treaty obligations. The absurdity of those 20 years in terms of the incentive to create seems more evident all the time. In fact, a report commissioned by the European Parliament and released a couple of weeks ago recommends this very option for the EU. This is not really surprising, since the report was authored by Julia Reda, the lone member of Parliament who represents the “Pirate Party,” which advocates for less draconian copyright law. But that Reda was assigned to do the study is significant and suggests that the EU may be open to her conclusion that copyright has become an obstacle to economic growth and cultural development that needs to be reined in.

In fact, even in the United States there has been some recognition that the Sonny Bono extension has done more harm than good. In a 2013 paper called, apparently without irony, “The Next Great Copyright Act,” Registrar of Copyrights Maria Pallante acknowledges that the copyright term is very long and that its length “has consequences” and needs to be made “more functional” (see pages 336–337). Although she stops short of asking Congress to repeal the 20-year extension, she does suggest “offsets” to mitigate the harm that has been done. Pallante is a far cry from being a “copyleft” radical; like previous registrars, she tends to favor the interests of big content industries. So her suggestion that the term of copyright be readjusted because it is too long is a remarkable acknowledgement of the problem we have created.

Public Domain Day is one more reminder that our copyright laws in this country have tipped the balance of protection too far from its public interest roots. Each year as January 1 passes and almost nothing significant enters our public domain, we should rededicate some effort to redressing this failure. Perhaps we should start a campaign to send New Year’s greetings to our congressional representatives that ask them to fix some of the problems before another year passes.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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