Public domain: Access denied | The Economist

ON JANUARY 1st each year the Centre for the Study of the Public Domain at Duke University fetes Public Domain Day. It is a joyous occasion, celebrating the end of copyright protection for works that at long last leave the bosom of legal monopoly for the commonweal. The centre does, however, temper the elation with an important caveat: while much of the rest of the world may take cheer from mass migration of material to the public domain each year, America has not seen one since the 1970s, nor will it until 2019.

The public domain is a catch-all term for material outside of the strictures of reproductive limits, or for which rights were formally foresworn. The centre promotes a balance between a creator's and the public's interest, says Duke's James Boyle. Mr Boyle, one of the drafters of the set of liberal copyright assignment licences known as Creative Commons, invokes countless studies arguing that tight copyright makes sense over short periods, to encourage creative endeavour, but can be counterproductive if extended too far. Yet rightsholders lobby for greater control (and legislators often oblige them) "even when it turns out that it hurts their interest," says Mr Boyle.

Europe has much to shout about each January 1st because unlike America, its harmonised copyright laws sever the licensing bonds on the January 1st that follows the 70th anniversary of an author's death. Indeed, Public Domain Day was launched as part of the European Union's Communia project concerned with related policy issues. As a result, this year Europeans, and readers in a number of other places, will be able freely to enjoy remarkable works, such as "The Confusions of Cadet Törless" and "The Man without Qualities" by the Austrian author Robert Musil, as well as the allegorical, surrealist oeuvre of Bruno Schulz, a Pole murdered by the Nazis in 1942, including "The Street of Crocodiles" and "The Cinnamon Shops". (The removal of restrictions applies to the originally published editions in the author's native language, not translations, or even, in some cases, later amended versions.)

America chose a different path. In 1978 and 1998 Congress extended, reshaped and expanded copyright durations and the scope of copyright for existing and future works (see Peter Hirtle's authoritative website for the gory details). For new works produced after January 1st 1978, the period of protection is the same as in the EU. But for works published from 1923 to 1977 for which copyright was properly registered and renewed (as applicable in the period when originally registered or created), copyright was prolonged to a full 75 years from publication regardless of the author's presence among the living. (Work by employees for a company or for which copyright has been entirely assigned to a firm, so-called "work for hire", has a different set of rules.)

In 1998 this was extended to 95 years, partly thanks to lobbying efforts by Disney. It wanted to prevent the first Mickey Mouse film, "Steamboat Willie", from entering the public domain. According to the old rules, the animation, released in 1928, would have been free to reproduce, modify and sell on January 1st 2004. Disney is a conspicuous and prolific user of the public domain, Mr Boyle notes, while remaining one of the most ardent defenders of keeping its own material out of it. 

Mr Boyle says the 95-year rule applied to older works made little sense. If copyright is assigned, in keeping with the American constitution, to "promote the progress of science and useful arts", extending it to people who had no expectation of long-term gains (and many of whom were, in fact, dead when the law was passed) would have needed to provide a retrospective incentive to create the works in the first place.

Duke's centre thus uses January 1st to tell Americans what they would be enjoying ready access to were the pre-1978 rules (a term of 28 years renewable in writing for another 28 years) still in place. The list includes volumes by Winston Churchill, Philip K. Dick's "Minority Report", Alfred Hitchcock's 1956 remake of "The Man Who Knew Too Much" and Johnny Cash's composition (though not recordings of) "I Walk the Line".

In 2019 American law will release published works of all kinds registered up until the end of 1923. Unless, that is, the copyright regime changes again. That would not surprise Jennifer Jenkins, who heads the Duke centre. The last extension, the Sonny Bono Act of 1998, met with little dissent (and mostly celebrity testimony). Congress passed the bill unanimously, in part to honour Bono, a fervent defender of Hollywood and the notion of perpetual copyright who had died a few months earlier. That said, Ms Jenkins points to last year's concerted opposition to SOPA and PIPA bills, viewed by many as giving all manner of rightholders too much control, as a sign that the advocates of the public domain will not give up without a fight.