The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


The Public Domain is So Hungry

At the close of this year, for the first time since 1997, copyrighted works will fall into the public domain, free for all to use.


Copyright protection for works of all kinds produced during the first half of the 20th century - novels, motion pictures, musical compositions, poems, etc. - had originally extended for 56 years from the date of publication. In 1976, Congress lengthened the term to 75 years.

As a result, while works produced in 1923 - films like DW Griffith's The White Rose and Charlie Chaplin's A Woman in Paris, novels like Hugh Lofting's Doctor Doolittle's Post Office and Kahlil Gibran's The Prophet, songs like Silbur & Kohn's Yes! We Have No Bananas and George and Ira Gershwin's I Won't Say I Will But I Won't Say I Won't - were originally scheduled to enter the public domain in 1979, thanks to the 1976 extension they got an extended lease on their copyrights, which would now be valid until 1999 (1923 plus 75 years); later works received the same retroactive extension, i.e., copyright in works from 1924 would now run until 1/1/2000, those from 1925 until 1/1/2001, etc.

In 1998, Congress was at it again. It gave copyright owners another big, juicy gift: the Sonny Bono Copyright Term Extension Act ("CTEA"), which took all works then under copyright and extended their protection by another 20 years. So copyright in those 1923 works, instead of expiring in 1999, would now last until January 1, 2019.

That date will therefore mark the first time in the last 20 years that any protected works will fall - finally! - into the public domain in the U.S.

But will they actually be allowed to do so, or will Congress step in yet again, with another gift for copyright owners? Many people, myself included, pointed out at the time of enactment of the CTEA, that Congress could just keep on extending copyright duration further and further, every 20 years, thereby contravening the constitutional requirement in Article I that copyrights could only be granted for "limited times." The argument that the CTEA was unconstitutional for this very reason was ultimately rejected by the Supreme Court (in Eldred v. Ashcroft, 537 US 186 (2003)), thereby seeming to give Congress free rein to do just that.

Fortunately, it appears that the likelihood of such an additional extension is relatively low, as Timothy Lee explains in a very interesting essay over at ArsTechnica. This reflects a small but rather significant change in the politics of copyright policy. In the past, copyright owners could get pretty much whatever they wanted from Congress. The benefits of longer copyright term, and broader and stronger protection, were felt by a small and very well organized constituencies - recording companies, movie studios, print publishers - who had/have a substantial financial interest in measures to increase copyright protection, while the costs were largely invisible, spread out among the members of the entire public who were denied free access to previously-copyright protected works.

But as Lee points out, that attitude on Congress' part has changed considerably, and it is not difficult to understand why. In 2011-2012, Congress was on the verge of adopting the Stop Online Piracy Act (SOPA), which would, among other things, have given copyright owners vast new powers to take down works they considered infringing on Internet websites. To pretty much everyone's surprise, including most notably the members of Congress who had assumed, as per usual, that copyright policy was of no interest to anyone outside the copyright-dependent industries, a massive public outcry, involving the temporary blackout of thousands of popular Internet sites in protest to SOPA's terms, erupted on the Internet, and SOPA was tossed overboard with alacrity. [If you're unfamiliar with the story of SOPA's demise, and the role of the grassroots public protest, it is described in another ArsTechnica story here, in a fascinating Berkman Center study of the entire public campaign, and in a number of my earllier blog postings here, here, here, and here, …].

It marks a small but interesting little inflection point in our politics, the last days of copyright owner hegemony over copyright policy, and deserves at least a little celebration.