Public Domain Day 2016: Freezes and thaws

For most of the past 55 years, the public domain in the United States has gone through a series of partial or complete freezes.  We’ve gotten used to them by now.  A thaw is coming soon, though, if there are no further changes in US copyright terms.  But right now, our government is trying to export freezes abroad, and is on the brink of succeeding.   And our own thaw is not yet a sure thing.

The freezes began in 1962, when Congress extended the length of copyright renewal terms in anticipation of an overhaul of copyright law.  Copyrights from 1906 that had been expiring over the course of that year stopped expiring.  The first extension was for a little over 3 years, but Congress kept passing new extensions before the old extensions ran out, until the 1976 Copyright Act established new, longer terms for copyright.  The 1906 copyrights that were frozen in 1962 would not enter the public domain until the start of 1982.

The freeze of the public domain in the 1960s and 1970s wasn’t complete.  Unrenewed copyrights continued to expire after 28 years, and works published without a copyright notice entered the public domain right away.  In 1982, all the traditional routes to the public domain were open again: age, non-renewal, publication without notice, and so on.  But that would only last about 7 years.   In 1989, the non-notice route was frozen out: from then on, anything published, or even written down, was automatically copyrighted, whether the author intended that or not.  In 1992, the non-renewal route was frozen out: copyrights would automatically run a full term whether or not the author or their heirs applied for a renewal.  In 1996, many non-US works were removed from the public domain, and returned to copyright, as if they had always been published with notice and renewals.  And finally in 1998, copyright expiration due to sheer age was also frozen out.  Due to a copyright extension passed that year, no more old published works would enter the public domain for another 20 years.  The freeze of the public domain became virtually complete at that point, with the trailing edge of copyrights stuck at the end of 1922.  It’s still there today.

But a thaw is in sight.  Just 3 years from now, in 2019, works published in 1923 that are still under copyright are scheduled to finally enter the public domain in the US.  Assuming we manage to stop any further copyright extensions, we’ll see another year’s worth of copyrights enter the public domain every January 1 from then on– just as happens in many other countries around the world.  Today, in most of Europe, and other countries that follow life+70 years terms, works by authors who died in 1945 (including everyone who died in World War II) finally enter the public domain.  In Canada, and other countries that follow the life+50 years terms of the Berne Convention, works by authors who died in 1965 enter the public domain.  The Public Domain Review shows some of the more famous people in these groups, and there are many more documented at Wikipedia.

But this may be the last year for a long while that people in Canada, and some other countries, see new works enter the public domain.  This past year, trade representatives from Canada, the US, and various other countries approved the Trans-Pacific Partnership, an agreement that includes a requirement pushed by the US to extend copyrights to life+70 years.  Those extensions would take place as soon as the TPP is ratified by a sufficient number of governments. In Canada, New Zealand, Japan, Malaysia, Brunei, and Vietnam, that would mean a 20-year freeze in the public domain, potentially coming into effect just before the US’s 20-year near-total freeze is scheduled to end.

Supporters of the public domain should not take either the pending freezes or the pending thaws for granted.  When the TPP was agreed on this past October, the leaders of the US and Canadian governments  were strong TPP supporters.  But the government of Canada has changed since then, and it looks like the US government might not put TPP to a vote until after the 2016 elections.  Canada’s new government, and some of the leading US candidates, seem to be more on the fence about TPP than their predecessors.  Organized public action could well shift their stance, in either direction.

While we’re awaiting a thaw in the US, we can still map out and digitize more of the public domain we have.  HathiTrust has been doing a wonderful job opening access to hundreds of thousands of post-1922 public domain books via its copyright review activities.   But other categories of unrenewed copyrights are not yet as well lit up.  For instance, Duke’s summary of the 1959 copyrights that could have been expiring today mentions 3 scholarly journals– Nature, Science, and JAMA, whose 1959 articles are behind paywalls at their publishers’ sites.  But it turns out that none of those journals renewed copyrights for their 1959 issues — the first issue to be renewed of any of them was the January 9, 1960 issue of JAMA — so we can digitize and open access to much of that content without waiting for the publishers to do so.

In the next three years, I’d love to see digital projects in the US make the post-1922 public domain as visible and comprehensive online as the pre-1923 public domain is now.  And then, if we ensure the thaw comes on schedule in the US, and we stave off freezes elsewhere, I hope we can quickly make another full year’s worth of public domain available every New Year’s Day.  Maybe once we get used to that happening in the US, we’ll be less likely to allow the public domain to freeze up again.
Happy Public Domain Day!  May we all soon have ample reason to celebrate it every year, all around the world.

 

Author: John Mark Ockerbloom

I'm a digital library architect and planner at the University of Pennsylvania.

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