The Public Domain

Why the Public Domain Matters

Why care about the public domain? How does it matter to you? Below are only a few examples of activities enabled by a robust public domain.

In Europe you will be able to engage in these kinds of projects, and more, with the wealth of material entering the public domain on January 1, 2013. In the US, under the law in effect until 1978, you could do all of this with works published in 1956 (and, because their copyrights would not have been renewed, with an estimated 85% of the works published in 1984).

But now everything published from 1923 onward is presumptively copyrighted and off limits, even though the vast majority of these works are no longer commercially valuable and no one is benefitting from continued copyright protection. And the public domain is shrinking just as digital technology puts the tools to do the things below at all of our fingertips, empowering the millions who could collect, restore, and build upon our cultural heritage. Read more.

The Incredible Shrinking Public Domain

In 2003, many of those who rely on the public domain had their hopes dashed by Eldred v. Ashcroft, the case that upheld the 20-year extension to the copyright term. (The effects of repeated term extensions are explored in more detail below.) The Constitution declares that copyrights must only be “for limited times” and that Congress can only create exclusive rights to “promote the progress” of knowledge and creativity. Despite those limitations, in Eldred, the Supreme Court held that Congress could retrospectively lengthen copyright terms – something that seemed neither “limited” nor aimed at promoting progress. (It is hard to incentivize dead authors!)

But 2012 was to hold in store an even more grievous blow to the public domain. In Golan v. Holder, the Supreme Court held that Congress can remove works from the public domain without violating the Constitution. Yes, that is right – even if the public now enjoys unfettered access to a work, Congress is allowed to take that work out of the public domain and create a new legal monopoly over it. What’s more, the Court declared, Congress can do so even when it is clear that the new right “does not encourage anyone to produce a single new work”! Read more.

Copyright Act of 1976

The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, codified the doctrine of “fair use,” and for most new copyrights adopted a unitary term based on the date of the author’s death rather than the prior scheme of fixed initial and renewal terms. It became Public Law number 94-553 on October 19, 1976 and went into effect on January 1, 1978. Read more.

Public Domain Enhancement Act

The Public Domain Enhancement Act (PDEA) (H.R. 2601 (108th Congress), H.R. 2408 (109th Congress)) was a bill in the United States Congress which, if passed, would have added a tax for copyrighted works to retain their copyright status. The purpose of the bill was to make it easier to determine who holds a copyright (by determining the identity of the person who paid the tax), and to allow copyrighted works which have been abandoned by their owners, also known as orphan works, to pass into the public domain. Read more.

Sonny Bono Term Extension Act Extends Copyright Terms

The Sonny Bono Copyright Term Extension Act, signed into law on October 27, 1998, amends the copyright laws by extending the duration of copyright protection. In general, copyright terms were extended for an additional 20 years.

For works created after January 1, 1978, copyright protection will endure for the life of the author plus an additional 70 years. In the case of a joint work, the term lasts for 70 years after the last surviving author’s death. For anonymous and pseudonymous works and works made for hire, the term will be 95 years from the year of first publication or 120 years from the year of creation, whichever expires first;

For works created but not published or registered before January 1, 1978, the term endures for life of the author plus 70 years, but in no case will expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047;

For pre-1978 works still in their original or renewal term of copyright, the total term is extended to 95 years from the date that copyright was originally secured.

There are additional provisions regarding sound recordings made before February 15, 1972, termination of grants and licenses, presumption of an author’s death, and reproduction by libraries and archives. For further information about these provisions, call the United States Copyright Office’s Public Information Office, Monday through Friday, 8:30 a.m. to 5:00 p.m., eastern time, except federal holidays, at 202-707-3000. You may view this legislation at the Copyright Office Website.

The Act does not restore copyright protection to any works that are in the public domain. Read more.

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