It’s Copyright Week, and in honour of this event, OTW Legal Chair Betsy Rosenblatt is answering some questions about the public domain.
What is Copyright Week and why is it important?
Copyright Week is a time for websites, libraries, and advocacy groups to bring attention to copyright law and policy–to get people excited about copyright law and keep people aware of legal developments. It takes place in the third week of January to commemorate the 2012 victory of Internet users over proposed laws called SOPA and PIPA. By speaking out, contacting Congress, and engaging in website blackouts, Internet users stopped overreaching copyright laws that would have put a lot of popular sites at risk. This year, we’re celebrating, because for the first time in many years, some works are entering the public domain in the United States!
What does “public domain” mean?
Although lots of works are publicly available, that doesn’t necessarily mean they’re in the “public domain.” The public domain is the universe of things that aren’t owned by anyone under copyright law. It includes ideas, facts, and very old works. It’s surprisingly small! That’s because copyright automatically protects all works of authorship as soon as they’re written down or recorded, and that protection lasts for a very long time. Because the U.S. Congress keeps making copyrights last longer and longer, nearly anything created between 1923 and now may still be copyrighted.
The public domain is very important for creativity–it represents a pool of information that creators can use to make new works without any restrictions. That is why ideas and facts cannot be copyrighted–people need to be able to make new works based on preexisting ideas and facts. Likewise, copyright (eventually!) expires, so that new creators can rely on old works to make new ones.
Why is this the first time in 20 years that new works are entering the public domain?
Back when U.S. copyright law was first created, copyrights only lasted for only 28 years. But over the years, Congress has changed the law many times to make copyright last longer and longer. Since 1976, copyright duration has been based on the life of the author. According to the most recent formulation, copyright lasts for 70 years after the author dies; or if the author is a corporation, copyright lasts for 95 years after the work was published. But before 1976, copyright was measured based on when the work was published, rather than when the author died. And in 1998, Congress enacted what was known as the “Sonny Bono Copyright Term Extension Act,” which gave a 20-year copyright extension to all works whose copyrights were about to expire. As a result, it’s been 20 years since any copyrights have expired at all!
But now, at long last, that 20-year extension is over and copyrights start expiring again.
What sorts of works are entering the public domain?
Anything that was first published in the U.S. in 1923 is entering the public domain. That includes a lot of works! Examples include works by Cecil B. DeMille, Buster Keaton, Charlie Chaplin, Laurel and Hardy, Igor Stravinsky, Virginia Woolf, Dorothy Sayers, Agatha Christie, H.P. Lovecraft, Robert Frost, Jane Austen, H.G. Wells, Edgar Rice Burroughs, P.G. Wodehouse, Man Ray, Marcel Duchamp, M.C. Escher, Pablo Picasso, Yokoyama Taikan, and many, many more. A more extensive set of lists is available here.
How does this affect fanworks?
Most fanworks are based on copyrighted works whose copyrights are not going to expire any time soon. And the fair use doctrine means that as a general matter it’s not infringement to create a non-commercial, transformative fanwork from a copyrighted work. So it would be easy to think that this change has almost no impact at all on fans and fanworks. And in a direct sense that’s true–nothing changes for fans of works created after 1923.
But in a larger sense, the expansion of the public domain is good for fanworks! It means that works from 1923 and earlier will be more available and less expensive to obtain and adapt, so people can discover them all over again. It means there can be new commercial releases, movie adaptations, and it also means that fans of works created in 1923 can create fanworks about them without thinking about whether or not their particular fanworks are fair use. And it brings attention to the important, complex relationship between copyright, creativity, and access to knowledge.