(Un)Happy Public Domain Day 2018

It’s certainly not the way I’d like to celebrate my return to movie blogging, nor the way I would love to ring in the New Year, but here we are.

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. 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, here’s a partial list of this year’s “honorees” courtesy of this page: Joseph Heller, Walker Percy, J.D. Salinger, John Howard Griffin, Irving Stone, Muriel Spark, Robert A. Heinlein, William S. Burroughs, Norton Juster, and Roald Dahl. And 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: Breakfast at Tiffany’s, West Side Story, The Guns of Navarone, A Raisin in the Sun, The Parent Trap, Splendor in the Grass, Judgment at Nuremberg, The Misfits, and The Hustler.

How about music? Well, just for example, Patsy Cline’s classic Crazy (Willie Nelson) would be available. So would Stand By Me (Ben E. King, Jerry Leiber, Mike Stoller), Runaway (Del Shannon, Max Crook), and Let’s Twist Again (Kal Mann, Dave Appell). You could publicly perform or set short films to Surfin’ (Brian Wilson, Mike Love) or Crying (Roy Orbison, Joe Melson), all without permission or fee.

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:

You would be free to use these books for theater, or make them into a film. You could translate them into other languages, or create accessible Braille or audio versions.2 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. Imagine a digital Library of Alexandria containing all of the world’s books from 1961 and earlier, where, thanks to technology, you can search, link, annotate, copy and paste. (Google Books has brought us closer to this reality, but for copyrighted books where there is no separate agreement with the copyright holder, it only shows three short snippets, not the whole book.)

If these films were in the public domain, you could use them in your own works, just as they used earlier works in theirs. West Side Story (music by Leonard Bernstein, lyrics by Stephen Sondheim, book by Arthur Laurents) was free to draw upon Romeo and Juliet because Shakespeare’s work was in the public domain. And as Judge Richard Posner observed, if the underlying works were copyrighted, “Romeo and Juliet itself would have infringed Arthur Brooke’s The Tragicall Historye of Romeo and Juliet . . . which in turn would have infringed several earlier Romeo and Juliets, all of which probably would have infringed Ovid’s story of Pyramus and Thisbe.” One work inspires another. That is how the public domain feeds creativity.

 

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.

There is some hope for the future, however. Unless congress moves in the next year to again change copyright law, works published in 1923 will finally begin to enter the public domain in 2019.

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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