When Is 1923 Going to Arrive and Other Complications of the U.S. Public Domain

Article excerpt

The best thing about copyright is that it expires. The Constitution gives Congress the power to grant the monopoly we call copyright if it wishes, but stipulates that it can only be for "limited times." Once copyright in a work expires (or if it never had it in the first place), the work returns to its natural state as part of the public domain. When works rise into the public domain, anyone is free to use, reuse, remix, and build upon them. Disney can make movies based on Snow White or Cinderella; John Gardner can rethink the Beowulf story in Grendel; and orchestras are free to play symphonies by Beethoven. None have to worry that a copyright owner may seek to limit or control what they can do with works in the public domain. (1)

The public domain has always existed, but the rise of digital and networked technologies has made it particularly important. Our copyright laws represent an agreement among powerful publishing and media interests that is intended to work for their mutual benefit. As The New York Times noted at the time of the passage of the 1976 Copyright Act, "No firecrackers went off when the compromise bill was cleared Oct. 1 ..." Why? Because "this matter is simply too technical, complicated and cumbersome for anyone but specialists to get very excited" (David K. Rosenbaum, "Ford Due to Approve New Copyrights Law," The New York Times, Oct. 11, 1976, p. 11).

Thanks to digital technologies, today everyone can easily be a publisher and, just as easily, violate copyright laws that were written with the assumption that all publishers would have New York or Hollywood lawyers review their use of copyrighted works and, when appropriate, negotiate permission fees. The public domain can be an escape valve. By using public domain music, art, and texts in digital mashups, the general public can step outside of our public-unfriendly copyright regime. The public domain is a cultural commons on which we can all freely draw.

All copyrighted works must eventually enter the public domain, but determining when that happens is not easy. That is because over the years the rules regulating copyright have changed, usually for the worse. In response to requests from copyright owners and in the absence of any evidence suggesting that it fulfills copyright's purpose (i.e., the creation and distribution of new works), copyright terms have been arbitrarily lengthened, and the range of works protected by copyright has widened. Sometimes the changes are retroactive; others apply only to prospective works. As a result, a mish-mash of rules and regulations governing copyright duration and the scope of the public domain has arisen.

In order to determine if a work was in the public domain, I needed help. Thus the chart "Copyright Term and the Public Domain in the United States" [http://copyright.cornell. edu/resources/publicdomain.cfm] was born. It seeks to explicate in simple chart form when a work enters the public domain in the United States. (2) In an effort to increase its utility, sections on new types of copyrighted works (sound recordings, architecture) have been added, and the explanation of the status of works published abroad has been refined.

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The copyright chart was built to help bring order and certainty to what is otherwise a chaotic field, but looks can be deceiving. Hidden within the chart are a series of assumptions, omissions, and exceptions that continue to make determining public domain status an uncertain art rather than a concrete science. Even with the chart in hand, it is impossible to determine absolutely the scope of the public domain in the U.S. or to say with 100% certainty that a work has risen into the public domain. Here are seven reasons why:

1. The confusing case of government works

Some works are never protected by copyright and are in the public domain from their moment of creation. Because these works never had copyright, there is no copyright to expire, and these works are therefore not included in a chart delineating copyright term. …