Public Domain: Why the USA Will Have Nothing to Offer Until 2019
By Rachael O'Halloran
Published September 14, 2014
Where Did Our Public Domain Go?
Definition of A Public Domain Work
A public domain work is any creative work that is not protected (or is no longer protected) by copyright (trademark or patent) and may be freely used by everyone. Some reasons a creative work is no longer protected might be:
- the term of copyright for the work has expired,
- the author did not follow the government's guidelines to complete or renew a copyright
- the work was created by the U.S. Government (governments of some countries - but not all - may have similar laws)
Why We Should Care About Public Domain Works
Many Use Public Domain Works For Inspiration
Every January 1, eager authors, musicians, photographers, artists, filmmakers, and other creative people will look over what has been released into the public domain to see what, if anything, they would like to use to recreate, alter, or expand on in their particular profession.
That's because anything that enters the public domain is a free-for-all. Oh, I don't mean you can put your name on it as the new owner.
What I mean is that anyone can take a public domain work and revamp, rework, recreate or rewrite it - as many times and as many ways as they wish.
There is no user limit, so if you want to use, for example, the words to a song in a new musical arrangement, and 100 other people want to use it too, all of you can do so without fear of copyright infringement.
The result is how our public cache of creative works grows, thereby enriching our culture.
Public domain privileges allow us to use the arts for inspiration while still preserving the works of yesteryear.
Public Domain Property
Perhaps you have seen the term "public domain property."
I don't particularly care for the wording because it implies that something in the public domain is still owned, when in fact, the complete opposite is true.
There are a number of different but more common ways to express when something is public domain.
- the work enters public domain
- the work becomes public domain
- the work is in the public domain
- the work is public domain
It all means the same thing - generally that the copyright holder no longer has a claim to the work, and now the public can use the work any way they wish - usually as the basis for another work.
Works In The Public Domain Eliminate The Argument For Fair Use.
Do you remember learning about quoting only a certain portion of a work and calling it fair use?
Well, there is no need to worry about that with public domain works. You can quote one page or one chapter, it doesn't matter because it is free for anyone to do with as they wish. There is no risk of copyright infringement or accusations of theft.
With all public domain (PD) works, you can:
- take a PD finished work and rework it to give it an alternate ending.
- take a PD novel and make it a play, opera or a film, for example.
- take a PD song and put new music to it or change the arrangement.
- take PD music and put words to it.
- take a PD painting, repaint it or use it as part of another work.
- draw a sketch using the subjects in a PD painting.
- write a quote (or text) directly on a PD photograph.
- add people or objects to PD paintings, PD drawings, or PD photographs.
- add PD music to your original or reproduced stage production.
The best part many people look forward to about items coming into the public domain is that they will no longer have to pay a license fee in order to be able to use them.
Public Domain Is Not Just About Copyrights
Although I talk mostly about literary works when I write about public domain and expiration of copyrights, the public domain also encompasses other things we use in daily life.
For example, patents which have expired on inventions, medicine, machines, and formulas are also covered under the public domain umbrella. Music, lyrics, paintings, and other works of art are all copyright-able and richly contribute to our culture and ultimately to our public domain.
Although the materials used in a project can't be copyrighted, patented or trademarked, the composition resulting from using the materials can be, and it is to those expiration dates we refer when we say they are in the public domain.
In science, sometimes the steps used to arrive at a conclusion, or a formula which had otherwise been secret, will be of interest so that when patents and copyrights expire, the formulas can be refined and the steps can be streamlined.
This is how we get generic drugs, often years after the name brand came on the market.
The patent was for a set period of time and when it expired, anyone was allowed to create a generic using the listed of ingredients in the formula as a guideline. Some generics will have more buffers or chelation than others; some will have more actual medication than others. Because the United States has "truth in advertising" thus labeling, the milligram ingredient must be listed in the literature and accompanying patient information sheets.
If copyrights, patents and trademarks didn't expire, we would lose the opportunity to refine or recreate our version of generic drugs, a stage play, a different take on a song, or an invention to make an invention more desirable and useful.
Works Without A Copyright Notice
Under the 1909 Act, works published without a copyright notice automatically went into the public domain upon publication. That means the author lost all rights to his work.
Works published without a copyright notice between January 1, 1978 and March 3, 1989, which is the effective date of the Berne Convention Implementation Act, retained their copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing a notice on unsold copies. 17 U.S.C. § 405.
Those who didn't comply within five years lost their copyright and their work entered the public domain.
The Sonny Bono Copyright Term Extension Act Of 1998
This new 1998 law changed the playing field, the rules, actually the whole game for every copyright holder, but especially for those certain people who made their living by solely relying on using public domain works as the basis for their art.
This law made copyright terms 20 years longer for all works in the United States. That was financially good news for the dead copyright holder's heirs or licensing agents, but it totally reset the clock for when works would enter the US public domain.
The law was not retroactive for all copyrights from the beginning of time. The law only went back 20 years to January 1, 1978.
Normally a copyright holder has one year to get the copyright renewal filed before their copyright expires. But with the signing of this new law, certain copyright holders nearing expiration were given five years.
Their original 1976 copyright term was 28 years, followed by a second renewal for another 28 years for a total of 56 years.
According 17 U.S. Code § 304 with the new changes in the law, after the initial term of 28 years, the second renewal was for a further term of 67 years, for a total of 95 years from the date the copyright was first registered. 28 plus 67 equals 95.
There are quite a few people who are up in arms because they read it to say 95 years after the death of the author OR life of author plus 95 years.
People are not reading the law correctly. It does not state that copyrights are effective for 95 years after the death of the author.
The new law reads: Copyrights are effective for 95 years from the date the copyright was originally registered.
To bring the actual text of the 1976 Copyright Law into context, wherever it says:
- 47 - replace it with 67
- 50 - replace it with 70
- 75 - replace it with 95
- 100 - replace it with 120
Once In Public Domain, Always In Public Domain?
That may be true of other countries, but it is not true in the United States as of 2012.
The US government is allowed to remove any work from public domain if they see a upturn in interest, for example, so that they can charge licensing fees and have a say in where and how the work will be used.
But the majority of creative folks don't want to pay licensing fees for works that were already free to use when they are (or were) in the public domain because their copyrights are expired.
It doesn't seem very fair, does it?
Here's the way it all plays out.
1. Because of the new Sonny Bono Copyright Extension Act, all works will be delayed coming into the public domain of the United States for another 20 years.
2. In 2003, the lawsuit of Eldred v. Ashcroft was fought all the way to the US Supreme Court to challenge the Sonny Bono law, contending that it was a violation of the US Constitution, which said copyrights must be for a limited period of time and that Congress can only create exclusive rights to promote the progress of knowledge and creativity- no for money making purposes.
- Eldred v. Ashcroft lost their case.
- The US Supreme Court ruled that the US government (Congress) could retrospectively lengthen all copyright terms to go as far back as 1978.
3. Then, in 2012 the case of Golan v. Holder challenged the Sonny Bono law again contending that it unconstitutionally delayed works which were no longer under copyright from entering the public domain.
- Golan v. Holder also lost.
- The Supreme Court totally upset the applecart when they ruled that Congress can remove works from the public domain and not be in violation of the First Amendment of the Constitution.
What does that mean?
It means that the United States government is allowed to dictate which works will enter the public domain - and which works can be pulled from the public domain no matter if they were there for years and years - and they can hold the work out of public domain as long as they wish.
By doing so, licensing (usage) fees must be paid in order to use the work in any way.
This in no way promotes the progress of creativity and knowledge as stated in the US Constitution. It promotes commerce. Actually, it raises a couple of questions.
First, if a work is removed from public domain (i.e. formerly free to use) and then comes under licensing for as long as Congress sees fit (there was no set term discussed), then who is going to want to pay licensing fees for something that countless other folks before them were able to use for free while it was in the public domain?
Secondly, all those projects which were created while a work was in public domain, are they now guilty of copyright infringement? Will they have to pay back licensing fees on each derivative work they created?
- By stifling and cutting off the public domain like this, old works may fade from our memory and ultimately from our culture.
- There will be no incentive to update old works, such as new productions of A Christmas Carol, West Side Story, or new musical arrangements of ragtime, jazz, or concertos.
If there is money to be made, the United States will find a way to do it. Taxes are the main source of government income, licensing fees and permits will no doubt be a close second now.
Does This Violate First Amendment Rights?
According to the US Constitution, copyright holders have legally protected rights for the length of their copyright term, “but after the copyright term has expired, no one acquires ownership rights in the once-protected works.” In other words, no one owns public domain works.
I guess now that has to be amended to read: "Except the U. S. Government!"
In the eyes of many citizens, the ruling of this 2012 Supreme Court case tramples all over the Copyright clause of the First Amendment of the Constitution regarding free speech. Public domain works (not just literary, but science and medicine as well as film and music) are important to the progression of our culture and to further medical and scientific research.
The majority of the Justices on the Supreme Court agreed that the public have no rights to works in the public domain. It is the only thing they agreed on.
The minority of the Justices on the Supreme Court - Justice Breyer and Justice Alito - asked this question:
- “Does the [Constitution] empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural purposes – all without providing any additional incentive for the production of new material?”
The answer from the majority of the Justices was: NO.
And that was that.
The Supreme Court ruling in this case reinforced the new law regarding governorship over public domain works. And the US government exercised their rights of governorship almost immediately.
Since Public Domain Day on January 1, 2013, they made the decision to stop releasing works into the public domain for a period of five years, until December 31, 2018. The next expected date of public domain releases is January 1, 2019 -- unless another new law comes along, in which case the expected date of 2019 will be null and void.
Ben Franklin must be rolling over in his grave. As founder of the Free Library System in every city in the United States, he advocated for the public to have free and easy access to works upon the death of a copyright holder.
The First Amendment of the US Constitution says that works are to be copyrighted for a limited time, then released to public domain.
Do you think that Congress is violating the First Amendment of the US Constitution by taking works out of public domain?
Photograph In The Public Domain
Original Footage of Albert Einstein
Albert Einstein Works In Public Domain
Since most of Albert Einstein's works were published before January 1, 1923, they are in the public domain in the United States. He died in 1955, so his works are also in the public domain in countries and areas where the copyright term is the author's life plus 50 years or less.
In countries and areas that have longer copyright terms, Albert Einstein's works may also be in the public domain if they use the rule of the shorter term to foreign works.
Some of Albert Einstein's works are in the public domain because they were published between 1923 and 1977 without a copyright notice. No copyright = public domain.
Resources and Free Works To Use
- Sources for Public Domain Works You Can Use Freely
Here is an in-depth guide to using public domain and Creative Commons materials for your theses, dissertations, publications, and other scholarly projects. Here are some trusted resources to assist you in locating public domain works.
- Public domain - Wikipedia, the free encyclopedia
Works in the public domain are those whose intellectual property rights have expired, or have been forfeited. Examples include the works of Shakespeare and Beethoven, most of the early silent films, the formulae of Newtonian physics.
- No books for U.S.public domain for another year
Works like Narnia and Atlas Shrugged will remain off limits to the public for a long time to come due to America's broken copyright system. Duke University offers an annual reminder of what we're missing.
How We Benefit From Public Domain Works
Copyrighted works can't be used for derivative purposes without getting permission of the copyright holder. However, public domain works can be freely used for derivative works without getting permission. Works of art that are public domain can be reproduced artistically, photographed or used as the basis of new, interpretive works to transform it into a new art form..
So how does that benefit the public?
Usually when a work becomes public domain, society will be enriched when they see new adaptations of the work such as film or stage performances, new scores to musical standards, and new presentations of artwork.
In 1987, the novel The Secret Garden by Frances Hodgson Burnett became public domain and there are creative works as derivatives.
Shakespeare's plays have been reworked every way you can think of so that some part or the whole of a work has been the basis of film, stage and musical productions since they have been in public domain.
Leonardo da Vinci's famous painting Mona Lisa has been the subject of thousands of derivative works.
And that's how we benefit from public domain works!
Rachael O'Halloran, September 15, 2014
© 2014 Rachael O'Halloran