Public Domain Day 2018: The 20-year alarm clock

In Washington Irving’s classic story “Rip van Winkle“, the title character follows an archaically-dressed stranger into a mountain hideaway, falls asleep, and wakes up to find the world has moved on 20 years without him.  He’s alarmed at first, but eventually figures out what has happened, adapts, and settles into the social fabric of his much-changed town.

We in the US are experiencing a similar phenomenon this Public Domain Day.  It’s now been 20 years since a full year’s worth of published content entered the public domain, when 1922 copyrights expired at the start of 1998.  Later that year, Congress passed the Sonny Bono Copyright Term Extension Act, and the advance of the public domain has been stuck in the Warren G. Harding administration ever since.

Other countries are doing somewhat better.  Most European countries have by now regained the 20 years of public domain many of them lost when they complied with the EU Copyright Duration Directive, and they now get to freely share the works of creators who died in 1947– people like Baroness Orczy, Alfred North Whitehead, Pierre Bonnard, and Willa Cather.  (We in the US get any unpublished works by people in this group, but that’s all that’s entering the public domain here today.)  Countries like Canada that kept to the Berne Convention’s “life plus 50 years” terms are doing substantially better– today they get the works of creators who died in 1967, including Carson McCullers, Arthur Ransome, Woody Guthrie, René Magritte, and Dorothy Parker.  (The Public Domain Review’s Class of 2018 article has writeups of some these authors, and others.)

This time next year, though, the US may well get to join the party in a bigger way, and have all copyrighted 1923 publications finally enter the public domain.  It’s not a sure thing, though– lobbyists for the entertainment industry have long pressed Congress for longer copyright terms, and while there’s no bill I’m aware of that’s been introduced to do it next year, that doesn’t mean that one couldn’t be quickly rammed through.  So it’s a good time for you to let your elected representatives know that you value a robust public domain, and want no further copyright extensions.  (And if you’re hoping to elect someone new in 2018, let your candidates know this matters to you as well.)

There are other ways that those of us in the US can prepare Public Domain Wake-Up party next year.  Some of us are continuing to bring the “hidden public domain” to light over the next year.  Researchers with HathiTrust’s Copyright Review Management System have by now found over 300,000 books and other monographs that are non-obviously in the public domain.  (You may be able to help them!)  The project I’m leading to help identify public domain serial content past 1922 is also underway, and should be complete later this year.  (See an earlier post for some ways you can help with that if you like.)

Other folks are working on another set of works that libraries in the US can now share– certain works in the last 20 years of copyright, which as of today span a full 20 years of publication, from 1923 to 1942.  A provision in the 1998 Copyright Term Extension Act, codified in Section 108(h) of US copyright law, allows non-profit libraries and archives to digitally display and distribute such works when they are not being commercially exploited, and copies are not available at a reasonable price.  Libraries have not made much explicit use of this provision until recently, partly due to uncertainty about when and how it applies.  A preprint article by Elizabeth Townsend Gard aims to clear up this uncertainty and spur libraries to make these works more widely available.  I hope that this work is further developed and applied in the coming year.  (And I’m happy to consider works in these last 20 years of copyright for inclusion in The Online Books Page‘s listings, when the libraries that have digital copies make it clear that they’re following the section 108(h) guidelines.)

I also hope some folks take some time this year to take a good look at what we’ve digitized from 1922, and compare it to what was copyrighted that year in the US.  What portion of 1922’s creative output have we brought to light online?   What sorts of works, and what people, have we tended to miss?  Knowing where the gaps are can tell us what we might want to focus on bringing to light from 1923.  Some of that material can be posted online now; hopefully the rest can be posted starting next January.

Finally, it’s worth remembering that you don’t have to wait for copyrights to expire on their own to share work whose copyright you control.  You can open-license them any time you like (this post, along with many of my other works, is CC-BY licensed, for instance).  And you can let them go entirely if you like.  I tend to put my works into the public domain 14 years after publication, following the original copyright term of the US, if I see no need to extend it further.  Today I do that again, and with this post you can consider anything I published in 2003, whose copyright I still control, to have a CC0 dedication to the public domain.

Happy Public Domain Day to everyone who’s seeing new works in the public domain where they are.  And here’s to waking up to lots of new additions to the public domain in the US a year from now.

Posted in copyright, online books, open access, serials, sharing | 2 Comments

Public Domain Day 2017: Keeping memory alive

It’s a bit hard to believe, but there are now adults in the US who cannot remember a substantial Public Domain Day.  In their own lifetimes, copyrights for published works have never expired here.  But I remember when they expired regularly every New Years Day, up until 1998.  And I have hope that in two more years, if our government does not acquiesce to the entertainment industry and extend copyrights yet again, we’ll start seeing published works again regularly enter the public domain here.

There are other things that I don’t remember, or haven’t seen much of myself.  I wasn’t around for the demagogues who whipped up mobs to usher in fascism and persecution in 1930s Europe, nor for the world war that followed that, nor the beginnings of European integration that helped keep the peace afterwards.  I didn’t personally experience the struggles for civil rights and equality of the 1960s and early 1970s, not being born yet, or being too young to take part in them.  I’ve never been to Russia, Turkey, Hungary, or the Philippines, where recent hopes of democratic and liberal reforms have given way to more authoritarian regimes.  I’m not an expert in the science that shows the world dangerously warming in recent years, how humans have caused and will be affected by it, and what we need to do to stop it.

Yes, all of these things are mentioned in history books and various media, but they’re often discussed in superficial ways that don’t reflect the detailed memories and lessons of the people who experienced them firsthand, or who are experts in understanding the issue.  I think that’s part of why I see our societies now making many of the same sorts of mistakes that people who know of these things firsthand could help us avoid.   I think it’s also part of the shock of many of people I know watching the news of the past year.  They didn’t have the personal memories of how prosperous societies can regress just as easily as they can progress, or hadn’t previously noticed how marginalized people experience those societies very differently than our dominant narratives suggest.

Keeping memory alive, and making it known far and wide, is essential if we are going to solve the problems we have today, and avoid the kinds of mistakes and disasters we’ve had in the past.   The more easily we can duplicate and spread that memory, the more likely we are to keep it alive.  That’s why the Internet Archive is making a backup copy in Canada, just in case anything happens to its primary US copy.  That’s why people at Penn and elsewhere are trying to duplicate all the data the government has on climate and other issues before the administration changes, lest it become unavailable or harder to access in the future.  That’s why projects like Wikipedia go out of their way to allow their content to be copied and readily downloadable in bulk, so it can be read and shared in places where the Internet isn’t as reliable or as uncensored as it is in other places.

And that’s one reason why the public domain is so important, and why it’s so important that copyrighted works enter the public domain regularly, automatically, and in a timely fashion.  Copyrights are important to support the people who create works of art and knowledge, and to help ensure that they can introduce them to the world in the form and manner they intend.  But it’s also important that after “limited times” (to quote the US Constitution) the works enter the public domain, so they can be copied, disseminated, reinterpreted and reworked, and remembered, without restriction.  The easier it is to copy and disseminate, the easier it is to remember.

In 2017, we have works by authors who died in 1946 finally entering the public domain in Europe and many other countries.  That now allows us to freely copy the works of those who perished in World War II and shortly thereafter, but not the works of all those who survived and helped rebuild society afterwards.  (Though it at least finally frees works like 1895’s The Time Machine, written by a young H.G. Wells who would live until 1946.)  We’re also seeing works by authors who died in 1966 entering the public domain in Canada and some other countries, freeing the works of people like the anti-fascist poet Andre Breton, as well as C. S. Forester’s Captain Horatio Hornblower.  (You can read about more authors now in the public domain in “life plus 70 years” and “life plus 50 years” countries in the Public Domain Review’s annual roundup.)

In the US, once again, no published works are entering the public domain today on their own accord.  (Works published in 1960 would have, under the copyright law in effect at the time they were published.   Duke has an overview of some of those, as they have for previous years.)  But we may soon be seeing works regularly enter the public domain once again, and there’s still a lot of the present-day public domain that’s not as well-known as it should be.  So there’s a lot we can do now to support the public domain in 2017.  Here’s what I’m planning to do:

  • Keep government accountable for the public domain and sound copyright policy:  The Congress and administration we just elected in the US are the same people who will be in office when 1923’s copyrights are scheduled to finally expire, on January 1, 2019.  I intend to make sure those expire on schedule, by watching for any attempts to extend copyrights further and telling my elected officials to oppose them.  (This has had good effect in other countries recently,  Pushback against the Trans-Pacific Partnership, for instance, has so far kept Canada from extending its copyrights another 20 years, as that treaty would have required them to do.)  I also intend to press the government to keep fair use strong, and to keep the Copyright Office administered by the Library of Congress, which will help it be responsive to both creators and consumers, and not just to the entertainment industry.
  • Bring to light the “hidden” public domain of the 20th century:  Many public domain works are now freely readable online, but most of them are from before 1923, when it’s easy to determine public domain status in the US.  HathiTrust has also made available many library books published between 1923 and 1963, whose copyrights have expired because they were never renewed as required.  But there are also a lot of unrenewed public domain newspapers, magazines, scholarly journals, photographs, and art and music from this time period that’s in the public domain as well, as well as pamphlets, posters, and underground and amateur publications from as late as 1989 in the public domain.   Unpublished works are also still entering the public domain, including in the US, from authors who died in 1946 or earlier.  All of this material is a crucial part of the memory of the 20th century, especially for more marginalized groups of people, and it’s at more risk of being lost and forgotten than most library books are.  In 2017, I’ll be working on projects that should make it considerably easier for people to clear copyrights for periodical literature in particular,  and thus keep the memories in them alive.
  • Highlight public domain and other open content especially important to remember:  On my Online Books Page, I’ll keep an eye out for books and serials in the public domain that cover topics that seem especially important for people to remember in 2017.  I’ll add them to my catalog with appropriate descriptions and make them more easily findable from places like Google and Wikipedia.  I’ll also be looking for more recent open-licensed content on these topics.  You can help me out with this, by suggesting titles for me to add. Over the past few years, I’ve added thousands of works to my new listings that were suggested by readers, and I’m eager to hear what you think we should be remembering.
  • Add my own work to the public domain:  Like many creators, I’d rather have my work remembered than keep it locked up for 70 years after my death.  So I open-license much of what I put online.  (This post for instance, is licensed CC-BY, so you can copy it as you like as long as you clearly credit that I wrote it and originally published it here on Everybody’s Libraries, and note the CC-BY license.)  And after a suitable period of time, I go further and put my work into the public domain outright.   Today, for instance, I dedicate everything I wrote and published prior to 2003, and whose copyrights I control, to the public domain, via a CC0 dedication.  I’ve made similar declarations in past years as well, inspired by the initial 14-year term that was prescribed by the US’s original copyright law.

It’s especially important in times of uncertainty and danger that we keep our collective memory alive, to help us move forward wisely and joyfully.  The public domain preserves and promotes that memory, and I hope you’ll join me in supporting it in the coming year.

Posted in copyright, open access, preservation | 2 Comments

Mid-20th century newspapers: Minding the copyrights

I was pleased to read last week that the National Digital Newspaper Program, which has sponsored the digitization of over 1 million historically significant newspaper pages , has announced that it has expanded its scope to include content published up to 1963, as long as public domain status can be established.   I’m excited about this initiative, which will surface content of historic interest that’s in many readers’ living memory. I’ve advocated opening access to serials up to 1963 for a long time, and have worked on various efforts to surface information about serial copyright renewals (like this one), to make it easier to find public domain serial content that can be made freely readable online.  (In the US, renewal became automatic for copyrights secured after 1963, making it difficult to republish most newspapers after that date.  Up till then, though, there’s a lot that can be put online.)

Copyright in contributions

Clearing copyright for newspapers after 1922 can be challenging, however.  Relatively few newspapers renewed copyrights for entire issues– as I noted 10 years ago, none outside of New York City did before the end of World War II. But newspapers often aggregate lots of content from lots of sources, and determining the copyright status of those various pieces of content is necessary as well, as far as I can tell.  While section 201(c) of copyright law normally gives copyright holders of a collective work, such as a magazine or newspaper, the right to republish contributions as part of that work, people digitizing a newspaper that didn’t renew its own copyright aren’t usually copyright holders for that newspaper.  (I’m not a lawyer, though– if any legal experts want to argue that digitizing libraries get similar republication rights as the newspaper copyright holders, feel free to comment.)

Text contributions

As I mentioned in my last post, we at Penn are currently going through the Catalog of Copyright Entries to survey which periodicals have contributions with copyright renewals, and when those renewals started.  (My previous post discussed this in the context of journals, but the survey covers newspapers as well.)  Most of the contributions in the section we’re surveying are text, and we’ve now comprehensively surveyed up to 1932.  In the process, we’ve found a number of newspapers that had copyright-renewed text contributions, even when they did not have copyright-renewed issues.  The renewed contributions are most commonly serialized fiction (which was more commonly run in newspapers decades ago than it is now).  Occasionally we’ll see a special nonfiction feature by a well-known author renewed.  I have not yet seen any contribution renewals for straight news stories, though, and most newspapers published in the 1920s and early 1930s have not made any appearance in our renewal survey to date.  I’ll post an update if I see this pattern changing; but right now, if digitizers are uncertain about the status of a particular story or feature article in a newspaper, searching for its title and author in the Catalog of Copyright Entries should suffice to clear it.

Photographs and advertisements

Newspapers contain more than text, though.  They also include photos, as well as other graphical elements, which often appear in advertisements.   It turns out, however, that the renewal rate for images is very low, and the renewal rate for “commercial prints”, which include advertisements, is even lower.  There isn’t yet a searchable text file or database for these types of copyright renewals (though I’m hoping one can online before long, with help from Distributed Proofreaders), and in any case, images typically don’t have unambiguous titles one can use for searching.  However, most news photographs were published just after they were taken, and therefore they have a known copyright year and specific years in which a renewal, if any, should have been filed.  It’s possible to go through the complete artwork and commercial prints of any given year, get an overview of all the renewed photos and ads that exist, and look for matches.  (It’s a little cumbersome, but doable, with page images of the Catalog of Copyright Entries; it will be easier once there are searchable, classified transcriptions of these pages.)

Fair use arguments may also be relevant.  Even in the rare case where an advertisement was copyright-renewed, or includes copyright-renewed elements (like a copyrighted character), an ad in the context of an old newspaper largely serves an informative purpose, and presenting it there online doesn’t typically take away from the market for that advertisement.  As far as I can tell, what market exists for ads mostly involves relicensing them for new purposes such as nostalgia merchandise.  For that matter, most licensed reuses of photographs I’m aware of involve the use of high-resolution original prints and negatives, not the lower-quality copies that appear on newsprint (and that could be made even lower-grade for purposes of free display in a noncommercial research collection, if necessary).   I don’t know if NDNP is planning to accommodate fair use arguments along with public domain documentation, but they’re worth considering.

Syndicated and reprinted content: A thornier problem

Many newspapers contain not only original content, but also content that originated elsewhere.  This type of content comes in many forms: wire-service stories and photos, ads, and syndicated cartoons and columns.  I don’t yet see much cause for concern about wire news stories; typically they originate in a specific newspaper, and would normally need to be renewed with reference to that newspaper.  And at least as far as 1932, I haven’t yet seen any straight news stories renewed.   Likewise, I suspect wire photos and national ads can be cleared much like single-newspaper photos and ads can be.

But I think syndicated content may be more of a sticky issue.  Syndicated comics and features grew increasingly popular in newspapers in the 20th century, and there’s still a market for some content that goes back a long way.  For instance, the first contribution renewal for the Elizabethan Star, dated September 8, 1930, is the very first Blondie comic strip.  That strip soon became wildly popular, published by thousands of newspapers across the country.  It still enjoys a robust market, with its official website noting it runs in over 2000 newspapers today.  Moreover, its syndicator, King Features, also published weekly periodicals of its own, with issues as far back as 1933 renewed.  (As far as I can tell, it published these for copyright purposes, as very few libraries have them, but according to WorldCat an issue “binds together one copy of each comic, puzzle, or column distributed by the syndicate in a given week”.  Renew that, and you renew everything in it.)  King Features remains one of the largest syndicators in the world.  Most major newspapers, then, include at least some copyrighted (and possibly still marketable) material at least as far back as the early 1930s.

Selective presentation of serial content

The most problematic content of these old newspapers from a copyright point of view, though, is probably the least interesting content from a researcher’s point of view.  Most people who want to look at a particular locale’s newspaper want to see the local content: the news its journalists reported, the editorials it ran, the ads local businesses and readers bought.  The material that came from elsewhere, and ran identically in hundreds of other newspapers, is of less research interest.  Why not omit that, then, while still showing all the local content?

This should be feasible given current law and technology.  We know from the Google and Hathitrust cases that fair use allows completely copyrighted volumes to be digitized and used for certain purposes like search, as long as users aren’t generally shown the full text.  And while projects like HathiTrust and Chronicling America now typically show all the pages they scan, commonly used digitized newspaper software can either highlight or blank out not only specific pages but even the specific sections of a page in which a particular article or image appears.

This gives us a path forward for providing access to newspapers up to 1963 (or whatever date the paper started being renewed in its entirety).  Specifically, a library digitization project can digitize and index all the pages, but then only expose the portions of the issues it’s comfortable showing given its copyright knowledge.  It can summarize the parts it’s omitting, so that other libraries (or other trusted collaborators) can research the parts it wasn’t able to clear on its own.  Sections could then be opened up as researchers across the Internet found evidence to clear up their status.   Taken as a whole, it’s a big job, but projects like the Copyright Review Management System show how distributed copyright clearance can be feasibly done at scale.

Moreover, if we can establish a workable clearance and selective display process for US newspapers, it will probably also work for most other serials published in the US.  Most of them, whether magazines, scholarly journals,  conference proceedings, newsletters, or trade publications, are no more complicated in their sources and structures than newspapers are, and they’re often much simpler.   So I look forward to seeing how this expansion in scope up to 1963 works out for the National Digital Newspaper Program.   And I hope we can use their example and experience to open access to a wider variety of serials as well.



Posted in copyright, open access, serials