(Un)Happy Public Domain Day – 2017 Edition

puub17So what do the founder of the Surrealist movement, a star of the silent film era, the Japanese author behind the popularization of Buddhism in the West, two female writers at the heart of the Modernist scene, and one of the “fathers of science fiction” have in common this year?

If you guessed that they’re among the creators whose works will be entering the Public Domain this year in other countries but not in the U.S., then you’re right.

Sigh…

Yep, once again, in what has become an annual tradition, it’s time to not celebrate Public Domain Day.

pub001What’s Public Domain Day? Simply put, it’s the day that we recognize the deleterious effects of the changes in copyright law since it was changed in 1978 and subsequently which have kept most of the things that would have gone into the public domain from doing so, and will continue to keep anything new from entering it until at least 2019, and in many cases even longer. As a matter of fact, that 2019 date only applies to the earliest works that will be eligible to enter the public domain. The ones that would be joining it this year most likely won’t actually become a part of it until 2056. And that’s if Congress doesn’t shift the dates on us again, which is altogether likely to happen. This is true for the U.S., though it is not necessarily so in Canada and much of the EU or other parts of the world.

For those of you wondering about the names of the individuals included in the list above, here’s a partial list of this year’s “honorees” courtesy of this page: André Breton; Buster Keaton; László Moholy-Nagy, Gertrude Stein; H. G. Wells; Frank O’Hara; Alfred Stieglitz, Evelyn Waugh; D. T. Suzuki; Paul Nash; Mina Loy, Walt Disney,  W. C. Fields, Lenny Bruce, an C. S. Forester. An that’s just a snippet of the list of authors whose works would be eligible. (More information about each them can be found at the link above or at their respective Wikipedia pages.) As far as movies go, the list includes: The Time Machine, Psycho, Spartacus, Exodus, The Apartment, Inherit the Wind, The Magnificent Seven, Ocean’s 11, The Alamo, The Andy Griffith Show (first episodes) The Flintstones(first episodes).

So what would these works being in the public domain mean in practical terms? As the Center for the Study of the Public Domain at Duke Law School puts it:

pub002Readers interested in iconic stories of courage in the face of racial injustice, or middle class America in the late 1950s, or just great literature, would have something to celebrate. In the current political climate, Shirer’s work, and also those of Hayek, Bell, and Schlesinger, might provide food for thought. And Dr. Seuss’s beloved books would be legally available for free online for children (of all ages).

You would be free to use these books in your own stories, adapt them for theater, animate them, or make them into a film. You could translate them into other languages, or create accessible Braille or audio versions. 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. Take, for example, The Conscience of a Conservative by Barry Goldwater—like the works listed above, it was published in 1960; but unlike those works, it’s in the public domain because the copyright was not renewed. You can legally download it for free, and the purchase price for an eBook is $0.99, instead of $10 or $20.

Imagine a digital Library of Alexandria containing all of the world’s books from 1960 and earlier, where, thanks to technology, you can search, link, annotate, copy and paste.

Beyond even that, though, our film heritage is suffering even more. Again, from Duke Law:

The case of film preservation is particularly troubling because older films are literally disintegrating, soon to be lost forever. The overwhelming majority of our cinematic heritage consists of orphan films — they are covered by copyright but have no ascertainable copyright owner. They include newsreels, documentaries, anthropological films, portraits of minority life in the United States, instructional films, and even some Hollywood studio productions. Because copyright law prevents scholars and citizens from using these orphan films (including copying and restoring them for preservation), the existing copies are actually disintegrating. This is because the cellulose nitrate base on which they were made makes them prone to shrinkage, to outgassing that destroys the film’s emulsion, and even to spontaneous combustion. The vast majority (upwards of 90%) of films from the 1910s have already decayed beyond the possibility of restoration. The numbers are only slightly better for works from 1920 to 1950. And the number of orphan films is staggering. As of 2005, of the 13,000 films housed at the Museum of Modern Art, over half were orphan works unavailable to the public. Vast numbers of the 150,000 titles held at the Library of Congress and the 46,000 tiles at the UCLA Film and Television Archive were also orphan films. (For more information, see the 2005 Report on Orphan Films submitted by the Center for the Study of the Public Domain at the invitation of the Copyright Office.) The law does allow libraries and archives (not preservationists generally) to digitize films 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” both that the work is not being commercially exploited, and that they cannot obtain another copy of it at a reasonable price.

Learn more about the situation in the U.S. and why the public domain is important in this article in Huff Post Books and this from the Duke Law School’s Centre for the Study of the Public Domain.

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