Posted on 12/31/2013 11:19:07 AM PST by zeugma
Current US law extends copyright for 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years – an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1957 would enter the public domain on January 1, 2014, where they would be “free as the air to common use.” (Mouse over any of the links below to see gorgeous cover art from 1957.) Under current copyright law, we’ll have to wait until 2053.1 And no published works will enter our public domain until 2019. The laws in Canada and the EU are different – thousands of works are entering their public domains on January 1.
What books and plays would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.
You would be free to translate these books into other languages, create Braille or audio versions for visually impaired readers (if you think that publishers wouldn’t object to this, you would be wrong), or adapt them for film. You could read them online or buy cheaper print editions, because others were free to republish them. (Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print – see here, here, and here.) Imagine a digital Library of Alexandria containing all of the world’s books from 1957 and earlier, where, thanks to technology, you can search, link, index, annotate, copy and paste. (Google Books has brought us closer to this reality, but for copyrighted books where there is no separate agreement with the copyright holder, it only shows three short snippets, not the whole book.) Instead of seeing these literary works enter the public domain in 2014, we will have to wait until 2053.
Think about the movies and television shows from 1957 that would have become available this year. Fans could share clips with friends or incorporate them into fantastic homages. (There are certainly some good candidates.) Local theaters could show the full features. Libraries and archivists would be free to digitize and preserve them. Here are a few of the works that we won’t see in the public domain for another 39 years.
These works are famous, so we’re not likely to lose them entirely – the true tragedy is that of forgotten films that are literally disintegrating while preservationists wait for their copyright terms to expire.2
What 1957 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely record your own version of some of the influential music of the 1950s, January 1, 2014, might have been a booming day for you under earlier copyright laws – “That’ll Be the Day” and “Peggy Sue” (Buddy Holly, Jerry Allison, and Norman Petty), “Great Balls of Fire” (Otis Blackwell and Jack Hammer), and “Wake Up, Little Susie” (Felice and Boudleaux Bryant) would all be available. You could score a short film with Dmitri Shostakovich’s Symphony No. 11 in G minor (Opus 103; subtitled The Year 1905). Or you could stage your own performances of some of Elvis Presley’s hits: “All Shook Up” (Otis Blackwell and Elvis Presley) and “Jailhouse Rock” (Jerry Leiber and Mike Stoller). Today, these musical works remain copyrighted until 2053.3
The musical “West Side Story” (music by Leonard Bernstein, lyrics by Stephen Sondheim, and book by Arthur Laurents) made its Broadway debut in 1957. Would “West Side Story” have been legal if Shakespeare’s Romeo and Juliet was under copyright at the time? Probably not. And, of course, if copyright existed in Shakespeare's time, as Judge Richard Posner observed, “Romeo and Juliet itself would have infringed Arthur Brooke’s The Tragicall Historye of Romeo and Juliet . . . which in turn would have infringed several earlier Romeo and Juliets, all of which probably would have infringed Ovid’s story of Pyramus and Thisbe.” Artists build upon the past. Creativity depends upon a healthy public domain.
For lovers of fine art, 1957 also featured a wealth of material, including Dali’s “Celestial Ride” and “Music: the Red Orchestra,” Ed Hopper’s “Western Motel,” and Picasso’s “Las Meninas” set of paintings. This remarkable series of works consists of reinterpretations – remixes, if you will – of Diego Velázquez’s famous painting “Las Meninas”(usually translated as “The Maids of Honor”). Velázquez’s painting became this, and this, and this, and this, and this, and this, and this, and even this. (See some of the 58 works in Picasso’s “Las Meninas” here.) Picasso did not have to track down Velázquez’s heirs and negotiate licensing fees in order to create this oeuvre. He was free to “copy Las Meninas, entirely in good faith” in a way “that would be a detestable Meninas for a traditional painter, but would be my Meninas.”4 One masterpiece inspired another. This is what the public domain allows.
1957 was a noteworthy year for science: the USSR launched Sputnik 1 and Sputnik 2, IBM released the first FORTRAN compiler, and the UK’s Medical Research Council published an early report linking smoking and lung cancer. There were groundbreaking publications in the fields of superconductivity and astrophysics such as “Theory of Superconductivity” by John Bardeen, L.N. Cooper, and J.R. Schrieffer and “Synthesis of the Elements in Stars (‘B²FH’)” by Geofrey Burbidge, Margaret Burbidge, William Fowler, and Fred Hoyle.
Both of the articles above are copyrighted, but thankfully their publishers have made them available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. Many articles from 1957 remain behind paywalls, including those in major scientific journals such as Science, Nature, and JAMA. Are you interested in a historical perspective on, for example, “Soviet and U.S. Professional and Technical Manpower” or the “Breeding Behavior of Cichlids”? You can’t read those articles unless you pay or subscribe (the first costs US$20 for one day of access; you can purchase the second for US$32).
It’s remarkable to find scientific research from 1957 hidden behind publisher paywalls. True, some older articles – especially those with enduring impact – have been made available on third party websites, though it is often unclear whether this is being done with the consent (or temporary forbearance) of the copyright holder, or simply being provided by enthusiasts who cannot imagine that access to these works is still legally restricted. But this is not a stable solution for providing reliable access to science. Third party postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit. Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts. Now, to get these articles from the publisher, you need a credit card or institutional subscription. And the institutional access that many top scientists enjoy is itself not a stable solution – even institutions such as Harvard have considered canceling their subscriptions because they can no longer afford the escalating prices of major journal subscriptions.
Not all scientific publishers work under this kind of copyright scheme. “Open Access” scientific publications, like those of the Public Library of Science, are under Creative Commons licenses, meaning that they can be copied freely from the day they are published.
Most of the works highlighted here are famous – that is why we included them. And if that fame meant that the work was still being exploited commercially 28 years after its publication, the rights holders would probably renew the copyright. (This is true for many of the works featured on this page, though even the shorter copyright term exceeds the commercial lifespan of a surprising percentage of successful works.) But we know from empirical studies that 85% of authors did not renew their copyrights (for books, the number is even higher – 93% did not renew), since most works exhaust their commercial value very quickly.
Under the law that existed until 1978 . . . Up to 85% of all copyrighted works from 1985 might have been entering the public domain on January 1, 2014.
That means that all of these examples from 1957 are only the tip of the iceberg. If the pre-1978 laws were still in effect, we could have seen 85% of the works published in 1985 enter the public domain on January 1, 2014. Imagine what that would mean to our archives, our libraries, our schools and our culture. Such works could be digitized, preserved, and made available for education, for research, for future creators. Instead, they will remain under copyright for decades to come, perhaps even into the next century.
Perhaps the most troubling aspect of the current copyright term is that in most cases, the cultural harm is not offset by any benefit to an author or rights holder. Unlike the famous works highlighted here, the vast majority of works from 1957 do not retain commercial value,5 but they are presumably off limits to users who do not want to risk a copyright lawsuit. This means that no one is benefiting from continued copyright, while the works remain both commercially unavailable and culturally off limits. The public loses the possibility of meaningful access for no good reason.
You can read more about the current costs associated with orphan works – works that are still presumably under copyright, but with no identifiable or locatable copyright holder – here and here. Importantly, the US Copyright Office has renewed its efforts to find solutions to the orphan works problem.
1 The copyright term for works published between 1950 and 1963 was extended to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed (which is generally the case with famous works such as those we are highlighting).
Many works published in 1957 are already in the public domain because the copyright holder did not comply with notice, renewal, or other copyright formalities. However, tracking down this information can be difficult (you can read just one of many illustrative examples collected by the Copyright Office here). Therefore, users often have to presume these works are copyrighted or risk a lawsuit (only works published before 1923 are conclusively in the public domain). You can read more about copyright terms from this excellent chart and from the US Copyright Office’s guide.
It is also difficult to determine whether foreign works are in the public domain in the U.S. Generally speaking, as a result of international agreements, foreign works published after 1923 are still under copyright in the US as long as one of the following is true: they were published in compliance with US formalities, they were still copyrighted in their home countries as of 1996, or they were then published in the US within 30 days of publication abroad. You can learn more about copyright terms for foreign works from the Copyright Office guide here.
2 The law allows libraries and archives (not preservationists generally) to digitize works during the last 20 years of their copyright term, but only in limited circumstances: the library or archive first has to determine through a “reasonable investigation” that the work is not being commercially exploited and that they cannot obtain another copy of it at a reasonable price.
3 Under the law at the time, these “musical compositions” – the music and lyrics – were subject to copyright, but the particular “sound recordings” embodying the musical compositions were not; federal copyright did not cover sound recordings until 1972. So, for example, the musical composition “Great Balls of Fire” written by Otis Blackwell and Jack Hammer was copyrighted, but not Jerry Lee Lewis’s particular sound recording of that composition.
4 Pablo Picasso as quoted by his close friend Jaume Sabartés in L'atelier de Picasso, a recollection that Sabartés published in 1952.
5 A Congressional Research Service study indicated that only 2% of works between 55 and 75 years old continue to retain commercial value. As explained on this website, many works from 1957 are technically in the public domain, but there is often no way to determine public domain status, so users have to presume that they’re still under copyright.
The Public Domain Day 2014 web pages by Duke University's Center for the Study of the Public Domain are licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
The public at large has been the miggest loser in all this, because so little works have been allowed to enter the public domain over the last century. A great example of this is one of Rudyard Kipling's works, The Jungle Book. Disney released a cartoon verson of The Jungle Book in 1967, one year after the work reverted to the Public Domain. They've made millions of dollars of this book. If copyright law that exists today had prevailed at the time, and Disney had wanted to similarly avoid paying royalties to the author, they wouldn't have been to make it until 2006 (i.e., 70 years after Kipling died in 1936.) They've since gone on to make 2 other "Jungle Book" productions are are rumored to be working on a third. Of these, the first three were all made before the copyright would have expired if copyright law that exists today had existed prior to their production.
Now, copyright is one of the few things actually provided for in the Constitution,
"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; "
As with just about everything else our Feral government does these days, it can't seem to find limits to its power when its corporate masters come calling with piles of cash to stuff in congresscritter's pockets. I find it hard to believe that the word "limited" was ever intended to mean anything even close to the essentially perpetual copyright we have today.
Those interested in the subject might want to check out "The Incredible Shrinking Public Domain" at the same site of the above article.
Just another glorious result of not following the Constitution.
“The Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries....”
LIMITED =/= Forever + a few more years just to be sure.
What Congress did was entirely constutional. Extending Copyrights helps to secure and promote both arts and Science.
If you want free books and movies, check them out from the library.
You can also get these book and movies for next to nothing at thrift shops and used book stores.
Only liberals want everything for free.
Just at the time public domain works could have been made freely accessible on the web, Congress makes them inaccessible. One of the worst policy decisions of recent times.
Did you even read my comment, or have you actually tracked down any of Shakespeare’s decendents to make sure they got paid for that copy of King Lear you read in high school?
Copyrights and trademarks are not secured by fees coming anywhere near the costs of enforcing them.
Fees need to be every seven years and adjusted for inflation.
I am sure you agree that the intellectual property holders need to actually pay for what they get. Regular fee assessment pretty much solves the orphan works problem as well.
That Hollings and Berman were not indicted, tried, and convicted of bribery tells you all you need to know about how things work.
It is up to Congress to determine the limited period of time in which to extend patent and copy rights. They have done so. The works of artists are property rights which are part of the estate of the copyright holder. These rights can and should be part of the inheritance of the families of the creators just as the homes you paid for with your own sweat and tears.
I have no inherent right to the fruits of another man’s labor. If Congress has chosen to protect the property rights of authors as part of their estates, then that is just fine with me.
Normally Congress tries to take away the property rights of its Citizens. Here is a case where they have given additional protection to those rights.
The liberals are all sad because they want everything to be free. It’s not fair!!!
Boo freaking Hoo.
Do you think that all property rights that are secured by our government should be secured by paying fees every few years in order to continue to own that property?
Based on your logic everyone should have to pay fees in order to continue to own the things that they worked for or paid for with their own money. In other words, if you don’t pay a fee to secure your Gibson Guitar, then anyone who sees it should be free to steal it.
Free is not the point.
It is to prevent the cluster we now have where everything is so copyrighted that you cant write a short story and publish it without some idiot citing something they wrote back in the 70s as grounds to sue you.
Like what art or science is being promoted by a work from the 50s still being protected?
Agreed.
Abstract ones, absolutely.
Because it is not securing a physical object.
It is a limited time prohibition on someone else duplicating something.
Something that may in fact be irretrievably lost if care is not made to preserve it.
Are you seriously not capable of comprehending that there is a critical difference between the two? Or that preserving things is as important as perpetual profit.
There is a balance that should be maintained.
Hostility to that balance is why most of A. A. Milne’s plays are forever lost.
Should we be required to pay the descendants of Francis Scott Key every time the National Anthem is played at a ballpark, or Shakesphere's descendants whenever Othello is performed?
The public domain is a common repository of our culture. It was never intended to become a perpetual state of affairs for any work, hence the "limited times" provisio in the Constitution.
From the referenced link.
Copyright is a necessary evil that we use to make sure that creators can be compensated by their work, but it was never envisioned to be as far reaching as it has become. The current terms and conditions actually reduce the mount of material that can be called upon from our cultural heritage in the creation of new works. Should Disney have had to pay Kiplings great, great grandchildren for the right to produce their Jungle Book cartoon, as I mentioned in my original post?
All the current assanine state of the law does today is encourage people to disregard it. Personally, I have no problem with passing along a copy of Dark Side of the Moon to a friend because the underlying Constitutional foundation of the law has been far exceeded by its current reach and breadth. Just like I'm not willing to obey a law that says my handgun can hold no more than seven rounds, I'm not willing to support the protection given to 40+ year old music.
If the state wants us to respect the law, they need to start respecting us as well. Copyright law is a compromise established because we want people to encourage the arts and science. The public domain is the rightful place for all works, because one may not call back words and ideas once spoken. As a society, we've decided to grant a time of exclusive control to authors and others because it benefits society as a whole to have such grants exist. However, corporate interests have purchased terms that have impoverished the public domain, leaving us with orphan works with no clear legal guidelines to determine the status of a work.
Contrary to your assertions, it's not about just wanting everything for free. Most of us who oppose the current copyright regime simply demand something that fulfills its stated Constitutional purpose.
Indeed. Good point. Doctor Who fans bemoan the fact that many early episodes have been lost because the BBC, in their short-sightedness reused the videotape they'd been filmed on.
You can bet that none of the new episodes will be lost regardless of what the BBC does or does not do.
Well said. People gripe about the intellectual desert of current books, movies and art. Excessive copyright length is one of the main contributors to the impoverishment of the public domain.
Project Gutenberg. From their welcome page blurb:
Project Gutenberg offers over 42,000 free ebooks: choose among free epub books, free kindle books, download them or read them online.
We carry high quality ebooks: All our ebooks were previously published by bona fide publishers. We digitized and diligently proofread them with the help of thousands of volunteers.
There is a sister site, Project Gutenberg Austrailia that has some advantages over the original PG site. Austrailia's copyright laws are much more sane than those in the U.S., so they are able to publish some books that are in the public domain there that are still considered to be under copyright here. I recently downloaded and read through the entire Lensman series by E.E.Smith. That's some seriously classic SF.
And yet that is also true. Property Tax. Both for RealEstate as well as everyday property.
Can you expand on the Milne example?
Why didn’t they also extend patents. A patent is 1000x harder to get than a copy write and only lasts 17 years no matter what.
Wouldn’t it be nice if someone wanting to learn guitar could choose form some song written after the civil war?
You can’t set up your estate in a way that is guaranteed to provide for your heirs for 70 years after your death, why does the author of “happy birthday” get to but you don’t?
A four legged cow
A big old sow
My mind is cheese
pass the ketchup please
(c)
I just copy writed that and published it. No one can use it for 70 years after my death. Seems fair doesn’t it?
And the best way to preserve it is to maintain a vested property right to the creator or his heirs or assigns.
Just because something expires into the public domain is no guarantee that it will be lost to future generations. But if the succeeding generation has a profitable reason to preserve something it is more likely to be preserved.
In what way have you been deprived of your Liberty because someone still has a copyright on The Cat in the Hat?
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