What is, what could have been, and what should be done

January 1st of each year is celebrated by the geeky few who track such things as “Public Domain Day.”  That is because the works whose copyrights expired in the previous year officially enter the public domain, through a convention adopted into the copyright laws of most nations, on January 1 of the following year.  Thus, on January 1, 2014, works written by authors who died in 1943 (2013 minus 70) should enter the public domain, and do so in most countries.  Thus this year should be the beginning of free public use of works written by Robert Frost, C.S. Lewis, Sylvia Plath, W.E.B. DuBois and many others.

Unfortunately, the various ways in which Congress revised our copyright law in the U.S. have created a ridiculous anomaly — no published works enter the public domain at all here in America until 2019 (assuming the law is not tinkered with again).  That is because under the 1976 Copyright Act, which took effect on January 1, 1978, all works that were already subject to copyright protection at that time, which was any published work that had been published, with copyright notice, after 1922 (1978 minus 56, which was the previous maximum copyright term), were simply given a 95 year term of protection.  Thus, in the U.S., no copyrights will expire for published works before January 1, 2019, when works published in 1923 will become PD.

So while many works of authors who died in 1943 became PD in other countries, in the U.S. only unpublished works by such authors rose into the public domain.  Those unpublished works are subject to the general life plus 70 term of the current U.S. copyright law, even though works published prior to 1978 are not.

That is the situation as it is, and you can read more about it on this page from Duke’s Center for the Study of the Public Domain, as well as this post on the TechDirt site.

To explore even more fully what might have been, the Center for the Study of the Public Domain also provides us with details about what could have been in the U.S. public domain if we had preserved the 56-year maximum term of protection that was the law prior to 1978.  Under that rule, works published in 1956 would be entering the public domain this year, including books by Jack Kerouac, Ayn Rand, Samuel Beckett and, my personal favorite, Margaret and H.A. Rey (if you don’t recognize this pair, think about an inquisitive monkey).

This year, we also received a timely reminder that the public domain is not as automatic as we might think; it requires attention if it is to flourish and be preserved.  On December 23, 2013, a judge in the District Court for the Northern District of Illinois issued a ruling that confirmed the fact that Sherlock Holmes (another favorite literary character of mine) is in the public domain.

Arthur Conan Doyle wrote four Sherlock Holmes novels and fifty-six short stories.  All but ten of the stories were published prior to 1923.  Nevertheless, the Conan Doyle Estate, Ltd. has continued to demand that anyone using the Sherlock Holmes character, as many authors wish to do, pay for a license.  When author Leslie Klinger and his publishers got such a demand, Klinger filed a lawsuit seek a declaratory judgment from the District Court that Sherlock belong to all of us.  The Conan Doyle estate argued that the Holmes character continued to evolve and develop right up through the last story, so that the character itself would not enter the public domain until that final story, published in 1927, does (which would be January 1, 2023).

Judge Ruben Castillo of the District Court in Chicago ruled, following substantial precedents, that the character of Sherlock Holmes, as he has been delineated in the four novels and 46 stories that clearly are PD, is also “free as the air for everyone to use.”  Only elements of the character that were added anew in those last 10 stories, elements such as Dr. Watson’s second marriage and Holmes’ retirement from his practice as a consulting detective, are still subject to protection.  But, according to Judge Castillo, all of the “Pre-1923 Story Elements,” which are more than sufficient for new authors to create stories featuring Holmes, are in the public domain.  He rejected the argument from the Conan Doyle Estate that Holmes was such a complex character that the earlier precedents, involving, they said, “flatter” and less richly delineated  characters, should not apply.  Such a rule, Judge Castillo pointed out, is to nebulous and difficult to apply; he decided to stick with the “increments of expression” rule about which aspects of a character are protected once some stories about that figure rise into the public domain.

So as we reflect on what is the situation regarding the public domain in the U.S., and what might have been, it is also important to recall what needs to be done.  There are lots of interested parties out there, like the Conan Doyle Estate, that will keep trying to sell that which should be free.  Just because someone offers, or even demands, a licensing transaction does not mean that such a transaction is required.  Users, including new creators who are building on work that has gone before (as all do) need to be vigilant and protect their rights, as Mr. Klinger decided to do.  We can easily fall into a false but happy belief that the public domain is automatic, a self-executing realm of free stuff.  But it is not; it requires attention and often direct action to ensure that our shared culture is fairly available to all without the extra-legal rules and fees that many would apply to narrow the scope of the public domain for the purpose of private gain.

For more detail about the public domain, legal regimes that have impoverished it, and pro-active efforts to protect and expand the canon of works freely available to the public, reading this article by Jennifer Jenkins, Director of Duke’s Center for the Study of the Public Domain, is a great way to cap one’s observance of Public Domain Day.