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2018 Is the Last Year of America's Public Domain Drought

Happy Public Domain Day to everyone except America.

Ben Richmond

Image: Shutterstock

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Happy Public Domain Day, every-some of you! In New Zealand and Canada, published works by artists who died in 1967—Rene Magritte, Dorothy Parker, John Coltrane, and many others—have entered the public domain; Kiwis and Canadians can now freely distribute, perform, and remix a wealth of painting, writing, and music. In Europe, work published by artists who died in 1947 are now public domain. In the United States, well, we get nothing for the 20th year in a row, with one more to go. Our public domain drought is nearly old enough to drink.

American copyrights now stretch for 95 years. Since 1998, we've been frozen with a public domain that only applies to works from before 1923 (and government works).

"Films are literally disintegrating because preservationists can’t legally digitize them"

Jennifer Jenkins is a clinical professor of law at Duke Law School, which hosts the Center for the Study of the Public Domain. In an email she explained what changed and why nothing has entered American public domain for two decades.

“Until 1978, the maximum copyright term was 56 years from the date of publication—an initial term of 28 years, renewable for another 28 years,” she wrote. “In 1998, Congress added 20 years to the copyright term, extending it to the author’s lifetime plus 70 years, or 95 years after publication for corporate 'works made for hire.'”

The extension wasn't just granted to copyrights made from then on. It also was applied retroactively to any existing old copyrights that were set to enter the public domain. We’re entering the last year of that in-between period. Next year works from 1923—songs by Irving Berlin, books and poems by Virginia Woolf and Aldous Huxley, and movies such as The Ten Commandments—will be public domain. Barring any new legislation, works will start entering every year with that 95 year lag.

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You don't have to be a anti-copyright absolutist to see that this nigh-century of copyright is too long—not commercially helpful and actually harmful. For the vast majority of works, the copyright outlives their profitability. Before 1978, copyrights needed to be renewed after 28 years and 85 percent of authors didn't opt in for the second 28. Jenkins said that “a Congressional Research Service study indicated that “only 2 percent of works between 55 and 75 years old continue to retain commercial value. For the other 98 percent of works, no one is benefiting from the continued copyright during the last part of the term.”

But on the flip slide, there’s enormous harm,” Jenkins said. “Films are literally disintegrating because preservationists can’t legally digitize them. The works of historians and journalists are incomplete. Youth orchestras can’t afford to perform contemporary music. Creativity is hindered—instead of encouraged—because artists can’t build on their cultural heritage.”

While in New Zealand factories of unlicensed-but-legal t-shirts bearing Magritte’s “Not To Be Reproduced” are churning to life, their American counterparts will have to wait...until 2052.

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