108 Comments

Summary:

Works like Narnia and Atlas Shrugged will remain off limits to the public for a long time to come due to America’s broken copyright system. Duke University offers an annual reminder of what we’re missing.

Cat in the Hat
photo: Dr Seuss

A new year means a new batch of copyrights expire, and works like The Chronicles of Narnia and The Bell Jar become as free to use as Charles Dickens or Shakespeare. Unless you happen to live in the United States, that is.

As Duke University notes in its mournful annual report, no books will enter the public domain this year, or next year, or the year after that.  This situation is the result of Congress’s decision to add another 20 years of protection for long dead authors, which means that no new works will become public until 2019.

As a related Duke article points out, famous 1957 titles like On the Road, Atlas Shrugged and The Cat in the Hat would have entered the public domain if the US had retained its pre-1978 copyright system, which granted protection for up to 56 years. Canada, meanwhile, has stuck with a “life of the author plus 50 years” rule, which means the public there — starting January 1 — can print or perform works by C.S. Lewis and Sylvia Plath (both died in 1963)

So why has the public domain dried up in the United States? The technical answer is a 1998 law that increased copyright terms to 95 years or more for works published after 1923 (you can get specifics from this excellent chart). But the more subtle answer is that the US government succumbed to lobbying efforts by Walt Disney and other powerful content owners that demanded ever-longer monopolies for their intellectual property.

The result is a copyright system that’s impossible to defend on economic or policy grounds. While copyright itself is a good thing — it helps artists and writers make a living — the repeated posthumous term extensions make no sense. No author, including Ayn Rand and Dr. Seuss, has made a decision on whether or not to write based on what will happen decades after they’re dead.

And while the extended copyright terms benefit the likes of the Walt Disney corporation (and the grasping heirs of Martin Luther King), they deprive everyone else of raw material for new stories and chill creativity with the threat of lawsuits.

If you prefer to look for bright spots, you can find them: courts in 2013 confirmed that the bulk of Sherlock Holmes is in the public domain, and a fair use decision on Google Books increased our access to knowledge. But last year also brought bad news too as the Supreme Court allowed Congress to remove even more works — including Pippi Longstocking and Peter and the Wolf — from the public domain, and legal scholars fretted that Disney will obtain another 20 years protection for Mickey Mouse.

As the debate rumbles on, you can reflect on some of the other works that would have entered the public domain. Via Duke:

  1. So, speaking hypothetically, these works could be on a website outside of the US, and it would be perfectly legal in that country for them to be there and be freely available, and the copyright owner would be able to do nothing to stop them from being there, is that correct? And if I in the US were to download such works I could be in trouble here if anyone happened to notice, correct?

    My next question: What can we do to get Congress to change the laws in the US?

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    1. Steve Douglas Friday, January 3, 2014

      Educate yourself on who you are voting for and the entire political process at the local and federal level. This is not a political statement for either party. It is about making sure the government works for us not the other way round.

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  2. Joshua Bodwell Thursday, January 2, 2014

    “US Starves…”

    “…mournful annual report…”

    “…chill creativity…”

    Is this for real? It’s so hyperbolically written that it’s certainly not worth copyrighting.
    That’s got to be the first time I’ve heard someone not being allowed to monetize someone else’s creative product described as “chilling creativity.”

    It saddens me that our culture thinks it okay that one can build a house and expect to pass it down to their children and children’s children and so on, yet can’t expect to do the same when one builds a book. It’s a culture that salivates at the idea of making money off the creative endeavors of others.

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    1. You’re missing the fact that “the culture” shares ownership in the value of so-called “intellectual” works. Such works have no intrinsic values all by their lonesome. They require the imprimatur of cultural acceptance+consumption to be as valuable as they’ve become. It’s a 2-sided street here. And part of the deal was that copyright would only last so long. That was the environment in which these works were created, produced, praised, and valued. To tamper with the rules after the fact sort of queers the deal and can only lead to more intellectual disillusionment and cynicism, and yes disregard of rules, in addition to the continued enrichment of the nominal owners.

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      1. Pay for the books and you can journey on the road as well. What makes you entitled to have them for free Jeff?

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        1. It is a constitutional right Jeff speaks of, in the original text, not one of the amendments. Read it sometime. Fascinating document.

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          1. How the hell is the person who created the work a “nominal” owner. I would much rather see copyright extended to 150 years than another court cave in to a parasite like Google. Google creates nothing, yet has the right to use copyrighted works, make money of that use, and not have to share the money with the copyright owner.

            Society is kicking itself in the head, but really, US society will always follow the story that has the most money spent advertising it.

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            1. Harrison Lansing Friday, January 3, 2014

              How about hearing what an author has to say about it? Spider Robinson paints a bleak picture, in 1983, about the perils of perennial copyright:

              http://www.spiderrobinson.com/melancholyelephants.html

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            2. As I use chrome to read this article, I find it amazing that you feel Google “creates nothing”.

              Searching books is a service, and it is a critical one. Copyright owners have no more reason to suppress the discovery of their work than a business has to be removed from all maps.

              The only group that wins by limiting access to works is Corporate Publishing, which seeks to make content rare by hiding existing content to the greatest extent possible. That isn’t fair to most authors, and it isn’t fair to the public.

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            3. Really? So just because it was an original part of the Constitution it doesn’t count? Copyright law was established to protect the rights of the creator. I think once the author dies, the copyright should die too. The person who created the work is not and no longer capable of collecting a dime, only parasites that live off the author’s memory. Can’t take it with you.

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            4. Google creates the index that allows us to search the expanse of the internet.

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            5. Phil Lockwood Friday, January 10, 2014

              The descendants of an author, nor the company holding (and extending the copyright) didn’t create the work, either.

              It’s not just about simply reading a book.

              It’s about the fair use of items that have been integrated into our culture. Authors should be able to create new works based on the existing legacies – write new Sherlock Holmes adventures, record new interpretations of classic songs, and make new paintings in response to existing pictures – without being burdened by excessive licensing and the threat of litigation.

              The purpose of copyright is to encourage creation, but the current laws stifle it in favor of shareholder profits.

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    2. Joshua, thanks for your comment but I’m not sure I understand your argument.. People can pass on copyright to their kids and grandkids. In fact, a novel written by a 20-year-old is likely to be covered by copyright until the year 2150. My point is that such terms are excessive and don’t reflect the incentive-based justification that governments use to grant copyright in the first place

      And as whether my article deserves copyright protection, I’m afraid you’re stuck there.. Thanks to the 1978 law, ANY work is copyrighted from the moment of creation, even old napkin doodles.

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    3. It’s exactly that sort of imposition of physical property law upon the concept of ideas that is starving the social context of the material required for further creativity. A few continue – over a riduculously extended time period – to benefit massively at the cost of the many. This is as fine a definition of parasitism as any you will find. Nobody resents the right of the creator to earn from his/her creation, but by your logic, we would still be paying royalties to the descendents of the caveman who first picked up a stone to drive his point home, every time we purchased a hammer.

      What gets me is that the U.S. film industry was literally built on intellectual property piracy.

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    4. From a little read, public domain document, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Notice the word limited and to authors and inventors, not their heirs and assigns. Look it up in the first article of the U.S. Constitution.

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    5. Timothy Bramlett Friday, January 3, 2014

      This isn’t about protected the works of the artists. This is, blatantly, to protect the corporations who now own rights to those works. Disney will lobby for extension of this protection until the end of fucking time so that they’ll always have a vice grip on their properties.

      Nothing to do with protection of the artists and creators and everything to do with corporate control.

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    6. but what if someones creative product is actually just a near copy of another product, one which doesnt have the support of million dollar lawyers and lobbyists? the big guy has been ripping off the little guys forever, they take these ideas that have been created over thousands of years by thousands of people, each revising it slightly, until they developed copyright law which somehow implies the greedy, wealthy companies are the original and sole creators of an idea, when in reality almost every advance in thinking and technology has been the collective work of many individuals, usually over many years

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  3. @ Joshua

    I don’t know if an analogy to owning a house is the same thing … because here, an author could purchase a house with their book profits, and the house can still be left to their children.

    I am absolutely in favour of public domain, I think where it trips people up is the monetary gains great-great-great-grandchildren are losing, and surely, by then, those great-great-great-grandchildren should be earning money by their own means, and let the works be enjoyed freely by the public at large?

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    1. Joshua Bodwell Thursday, January 2, 2014

      Fran,

      An author deserves to profit from the sale of their book–the creative product–not just for their lifetime (or their heir’s lifetime) but for so long as the public decides it wants to purchase said book.

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      1. Agreed!

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  4. A question that must be posed to Mr. Roberts: How would Jailhouse Rock or 3:10 To Yuma being in the public domain provide new raw material? How would releasing the copyrights to How The Grinch Stole Christmas “thaw” creativity rather than chill it?

    Do we really want airwaves teeming with more Elvis remakes? And existing copyrights don’t seem to be stopping Hollywood from remaking classic movies.

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    1. Dave, I agree that we probably have enough Elvis and that Hollywood is still remaking classic movies. But the issue is a bit more subtle than that.

      It might be helpful to think of how groups like Led Zepplin drew on the work of early bluesman, or how Walt Disney appropriated stories (the Little Mermaid, Snow White, etc) by Hans Christian Andersen and the Brothers Grimm to make new movies. If current copyright rules had been in place in the mid-20th century, a lot of this stuff wouldn’t get made in the first place.

      And in regard to the “chill” question, the problem is hyper-active lawyers employed by studios and record companies who threaten to sue anyone who comes near the “work” of their clients.

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      1. Joshua Bodwell Thursday, January 2, 2014

        This entire “chilling” idea is a bit disingenuous.

        In the late 1980s and early 1990s there were many lawsuits around so-called “sampling” in rap music. Boundaries were created. One could not simply take whole-sale the drum beat from another musician and rap over it without compensating the creator of that drum beat.

        So, did that “chill” the creation of rap music? Or did rap music explode in the late 1990s and become the highest earning genre of music at the time?

        PS: when you write something like “…who threaten to sue anyone who comes near the “work” of their clients.” and put the word work in quotes like that, it seem kind of insulting to the culturally significant WORKS OF ART you’ve listed above, such as On the Road.

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        1. Joshua, I’m afraid you’re just wrong on this one. The “sampling” lawsuits of the 1990’s had a serious effect on hip-hop (see Tim Wu’s “The Shady one-man corporation that’s destroying Hip-Hop). http://www.slate.com/articles/arts/culturebox/2006/11/jayz_versus_the_sample_troll.html

          I put “work” in quotes because cease-and-demands are not always issued in defense of books like “On the Road” — the “work” in question is frequently something insignificant or a case of fair use. I have no problem for artists and their lawyers standing up against cases of real infringement.

          But this is largely outside the scope of this article, which concerns the length of copyright terms. (Then again, if the terms were not so absurdly long, there would be fewer occasions for lawsuits – and more respect for the copyright regime overall.)

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          1. Joshua Bodwell Thursday, January 2, 2014

            Yes, Jeff, I said the lawsuits of the 1990s had a serious effect on hip hop.
            But if you can type with a straight face that hip hop sales are currently, today, plummeting or that the genre is in danger of disappearing, you’re out of your mind.

            *To your note that copyright protection is “absurdly long,” I’d have counter: why is there a timeframe at all? I’m sure you’re fine that Coca Cola has protected it’s trademarked logo since the 1880s. Why can’t a novelist who published a novel in the 1880s expect the same?

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    2. You obviously have never negotiated a movie rights contract!

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  5. Superb article–corporate copyrights have a raison d’etre, but these indefinite extensions rob all mankind and do nothing for the actual authors. We need to counter-attack.

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    1. Thanks for kind words, Rob

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    2. Joshua Bodwell Thursday, January 2, 2014

      “counter-attack”! Ha, you’re hilarious, Rob.

      You can see the soundness in protecting the long-dead man who trademarked the Coca-Cola logo, but affording the heirs of, say, Dr. Seuss the same rights escapes you?

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      1. The original author made that person’s money. That person left it and the immediate royalties to people that person knew and loved. Maybe one more generation. About now, the people parasitizing off the long-dead author’s work just know that person as the name on a check. Time to let the world have it. The third generation can write books of their own to make money.

        Glad you’re so easy to amuse.

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    3. I have long preached that the current copyright law is unfair to scholars, teachers, libraries, and librarians. Sometimes it is impossible to determine if an orphan work is still protected by copyright or who even cares. Works that no one has made an effort to register the copyright or make a proper notice in the work, should pass into the public after a set period after publication without the need to consult about the lifetime of the creator.

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  6. Atlas Shrugged is on this list, that is hilarious!!! Considering the whole book is about a bunch of parasites who rob working creative people of their production based on societies “needs”

    Maybe we should just ban authors from writing and make all books free, after all it is my right to read right. We already have enough books, why make any more.

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    1. “Considering the whole book is about a bunch of parasites who rob working creative people of their production based on societies “needs””

      What do you think Rand would think about a bunch of greedy publishers milking her works for money she will never see and her heirs living off of money they only earned by being born a son or daughter of Rand, never striking out to blaze their own path?

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  7. Jeff,
    I was trying to understand what the big deal was, but you seemed to clarify that question when answering others. Thanks for sharing. I’ll have to look into that law of 1978. As I’ve been interested in getting my works copyrighted and wondering if it was even necessary these days. Perhaps you could provide some facts and resources?

    Thank you,

    Adam

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    1. Thanks for the kind words, Adam.. There’s many great resources out there to learn about copyright, but to get a hang of the basics, I would check out the FAQ’s at Stanford’s Copyright and Fair Use center: http://fairuse.stanford.edu/overview/faqs/

      For the larger philosophic issues, I highly recommend Larry Lessig’s book Remix or Bill Patry’s “How to Fix Copyright” .. Both are giants in the field and write in a lively, readable style

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    2. Kieran Maynard Thursday, January 2, 2014

      Adam,

      As Jeff said in a comment above, “Thanks to the 1978 law, ANY work is copyrighted from the moment of creation, even old napkin doodles.” It isn’t necessary to “get” a copyright. Anything you write has copyright instantly.

      Best,
      Kieran

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      1. yes he is correct there is no need to “get” a copyright because the copyright is not a document, it is the work itself. Before the widespread use of computers in which all files are tagged with a creation time-stamp there was the trick of mailing the copy written material to yourself and leaving the envelope sealed thus providing evidence of the time of creation via the post mark. however since most work is originated from a computer now there is no need for such precautions.

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        1. You own the copyright from the moment of creation, but defending successfully it in court is another matter entirely. Unsealed envelopes can be mailed to oneself and then stuffed and sealed with stolen content later. Time stamps on digital files can be forged. None of those techniques ever have held up in a court of law, or ever will. Additionally, copyright law in the U.S. specifically allows you to collect damages for copyright infringement only if the copyright has been registered. If you think your original work may be worth money, the only sensible thing to do is register the copyright.

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  8. Shall I conclude from this that Senator Ted Cruz’ public performance of “Green Eggs and Ham” on the Senate floor was an illegal copyright violation if he did not obtain prior approval from the owner? He may have,

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    1. The reading of Green Eggs and Ham by Sen. Cruz would have been violating the copyright of the author if he were performing for compensation. However that would be quite a fine point if brought to trial. If he were performing the reading for compensation would the compensation have been for the content of what was read or would it have been for the performance of the reading? Both sides could be argued but I think the Green Eggs and Ham side would loose because of the works a availability it’s would difficult to make the case the the audience paid solely for the content of the book. This is like asking which is the more influential aspect of a movie the Director or the actor. But since Sen. Cruz was not performing the reading for the purposes of profit than I would think your point is moot.

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      1. Claude Albertario, RST, RPSGT Thursday, January 2, 2014

        Why can’t the case be made that Cruz was BENEFITING from the notoriety of the silliness of reading that specific book at that specific point in that specific setting, and no other book would have done.He harmed Green Eggs and Ham. COMPENSATION IS DUE.

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      2. Joe, you don’t know what you’re talking about. It’s COPYright. Compensation has nothing to do with anything.

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        1. Also, public performance of a work is not the same as COPYing a work.

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  9. Copyright allows the author and the author’s assigned heirs to control the distribution of the copyrighted property and benefit from it financially.

    What is this such a terrible thing?

    The work is still available, but the public has to pay for it as they did originally.

    Or borrow it from a library. Like the old days.

    Why must everything become free for the taking?

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    1. Joshua Bodwell Thursday, January 2, 2014

      Hear, hear, Cliff.

      There will be people seeking to make everything free for the taking so long as there are those who seek to profit from the creative talent of others without compensating the creator, and people like Jeff John Roberts here who think that’s swell.

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      1. Joshua, your last comments suggest you’re more interested in making ad hominem smears rather than engaging in a serious discussion of how to calibrate intellectual property policy. Do you care to disclose what you do for a living?

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        1. Joshua Bodwell Friday, January 3, 2014

          Disclose what I do for a living? Why all the high-drama, Jeff? It was, in fact, the hyperbolic drama of this article that first cued me to the fact that it wasn’t journalism of any kind, but some weird agenda driven piece:

          “No Books for You: US Starves…”
          “…mournful annual report…”
          “…chill creativity…”

          So, to respond the question you ask (even though you’ve already Googled me and looked for yourself…which makes your question here oddly passive aggressive and, again, weighted with a high-drama it doesn’t warrant), I do a couple things for a living. I am the executive director of the Maine Writers & Publishers Alliance, a 38-year old organization that works to enrich the literary life and culture of Maine. I am also a former newspaper reporter and continue to write freelance journalism, though primarily for magazines not newspaper.

          So, your point in asking, Jeff? Does this somehow reveal me as an ardent supporter of writer’s rights? Ok, I guess. Though I held these beliefs long before I did what I do for a living. And that belief, to be clear, is that when an author creates a “creative product,” they deserve to not only personally benefit from it, but also decide who else gets to.

          To argue that one’s own creativity is “chilled” or in anyway stunted because another’s creative product is protected is disingenuous.

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          1. Joshua: I think it was fair to ask what you do given your strident positions and nasty, off-base accusations. I did Google you, but only hours after I left my question in the comments; I was curious if you were a lobbyist. I was disappointed to find out you are a writer too — people like you who wrap up absurd economic and legal arguments in the cloak of protecting authors simply muddy an important debate about culture and intellectual freedom.

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            1. Joshua Bodwell Friday, January 3, 2014

              Jeff:

              A lobbyist for what? Authors and author’s rights?
              Don’t wrap your slanted piece in the cloak of protecting “culture and intellectual freedom.” On the Road (to name a single book from your list) not entering the public domain has zero negative impact on our “culture and intellectual freedom.”

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    2. Should Bernstein pay Shakespeare’s estate for stealing Romeo and Juliet as the idea for West Side Story, might as well go after Grease while we’re at it. I’m sure if we trawled through Brian Wilson’s works we could find enough similarities to suggest it was all copied from great american composers (Bernstein himself suggested that is what made Wilson’s work so good). We have always retold stories and each generation has made the arts their own, through modification and copying (look at Warhol), but that will no longer happen. Art will become the preserve of our ancestors, our children will have no room for creativity without copyright infringement. It spells the end of art, and ultimately culture.

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  10. Wow, some of the comments here are disheartening, there are two questions that seem to be popping up, sarcastically or otherwise so I thought I would share them and the answers from Duke University’s Law Department website:

    Who benefits from the public domain?

    Artists of all kinds rely on the public domain — Homer’s The Odyssey has given us Twain’s The Adventures of Huckleberry Finn, Joyce’s Ulysses, and the Coen Brothers’ O Brother Where Art Thou?, to name only a few; and the twelve bar blues influenced genres from country to jazz to soul to rock and roll. Journalists and activists use facts and symbols in the public domain to inform the public and spur debate. Hobbyists screen forgotten films and collect old recordings. Commercial publishers reprint public domain works and sell them at discounted prices. Teachers, libraries, museums, historians, archivists, and database operators use the public domain to collect, preserve, and teach us about our past. Scientific and technical research would be impossible without access to data and discoveries. Youth orchestras and church choirs perform public domain works for their communities. Read about other potential uses of the public domain on our why it matters page. The list goes on . . . chances are, you’ve used, enjoyed, and depended on the public domain as well.

    The public domain sounds really valuable, but I’m in favor of intellectual property, is there a contradiction?

    Quite the contrary. You’ll be happy to hear that the public domain is a vital, indispensable part of our intellectual property system, and the inputs in the public domain are just as important to its function as the outputs protected by intellectual property. As Judge Kozinski of the Ninth Circuit Court of Appeals put it: “Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.” Without the public domain, there would be little to protect with intellectual property rights — if copyright lasted long enough to lock up Shakespeare’s works, much of the literary canon would vanish; if data, theories and formulae were subject to intellectual property protection, then scientific progress would grind to a halt. So the intellectual property system needs both the incentives provided by exclusive rights and the freedoms provided by the public domain, and the key is to find the appropriate balance between them.

    Source:http://web.law.duke.edu/cspd/publicdomainday/2012/faqs

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    1. Thanks for sharing, Nick.. Those are very helpful!

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    2. Claude Albertario, RST, RPSGT Thursday, January 2, 2014

      It is absolutely insane to think that ANY author of any work was not influenced by what came before them. Even Ayn Rand stole from others with her childish, juvenile scribblings.

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