How did you celebrate Public Domain Day, January 1st? I celebrated in suitable fashion, among 90,000 celebrants in red and white. Of course, in the United States, not much has entered into the public domain for the last 14 years or so, since the Sonny Bono Copyright Term Extension Act went into force, extending individual copyrights by 20 years, and works for hire by 25 years.
The balance in copyright between producers and consumers has been warped in favor of producers for a long time. Copyright protection is designed to encourage the production of new material — not reward the makers of old material. As Justice Steven Breyer stated in his dissent in Golan v. Holder:
“In order ‘[t]o promote the Progress of Science’ (by which term the Founders meant ‘learning’ or ‘knowledge’), the Constitution’s Copyright Clause grants Congress the power to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.’ Art. I, §8, cl. 8. This ‘exclusive Right’ allows its holder to charge a fee to those who wish to use a copyrighted work, and the ability to charge that fee encourages the production of new material.”
However, when copyright terms go from 14 years (the original term in 1790), to 28 years (1831), to life of the author plus 50 years (the original provision in the 1976 Copyright Act) to life of the author plus 70 years now, what new incentive to an author is there? Will studios make any more movies because copyrights on works-for-hire are now 95 years, instead of 70? I just don’t see someone saying that they’ll make this work if the copyright lasts until 2108, but not if it lasts only until 2083. In the meantime, many works are left ignored, because it costs too much to re-release them.
In 1974, Frank Capra’s classic It’s a Wonderful Life went into the public domain, after languishing on various studios’ back shelves for more than two decades. When I first saw it in 1981 on film, there was still some cost involved in preparing and shipping the film. Now, however, there are no costs to copying — it is available on YouTube, and millions of people can enjoy Jimmy Stewart saving Clarence (and the town of Bedford Falls), and discovering Zu-zu’s petals. By attempting to grab every last penny of worth in a work in an era in which the cost of good-quality copying approaches zero, producers’ over-reliance on copyright may cause the entire copyright regime to fail.
The Economist has another good examination of copyright law, which examines the sorry state of the public domain. No one wants to discourage artists and authors from creating new works, but it is in no one’s interest to have
Photo credit: By Peter Denton [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons