Can We Strengthen our Fragile Public Domain? | Peer to Peer Review

"Each year the copyright community celebrates January 1 as 'Public Domain Day.' That is because a convenient fiction included in most nations’ copyright laws says that if a work’s term of protection expired during the previous year, it officially enters the public domain on the following January 1st. Instead of having to figure out the exact day of an author’s death, and having different works enter the public domain each day, we just save them all up, so that all the works whose term expired in 2014 (i.e., all works whose authors died 70 years earlier, in 1944) entered the public domain on New Year’s Day 2015. At least, they did in most other countries, but not in the U.S. Because of the bizarre arithmetic of our copyright term, published works that entered the public domain elsewhere this year remain locked in copyright in the United States. When we changed our copyright term in 1978 to life plus 50 years—and later, 70 years—we did so only prospectively. Works published prior to that date that were still within the older term of copyright and were simply granted a 95 year term from the original date of publication. The result is that nothing except unpublished works enters the public domain in the U.S. these days. Not until January 1, 2019, 95 years after publication for works published in 1923, will we begin to see 'new' published works in our public domain (assuming the term is not extended again). Consider The Little Prince, by Antoine de Saint-Exupéry. It was first published in 1943, and its author died in 1944. Because of Saint-Exupéry’s untimely death while flying a reconnaissance mission for the Free French during World War II, The Little Prince entered the public domain last month in most other life-plus-seventy nations, just 71 years after it was published. But in the U.S. it remains protected for an additional 24 years, until January 1, 2039. This clamp that the U.S. has placed on its own public domain is frustrating, but it is only part of the problem. Another change in our copyright law, the move to automatic protection, which took place in stages between 1978 and 1989, also plays a huge role in impoverishing the body of material available for free use. Since everything is protected automatically, creators cannot dedicate their work to the public through benign neglect of copyright formalities, as used to be possible. There are, of course, public domain licenses like Creative Commons 0 that purport to put works into the public domain, but this post from Public Knowledge (PK) raises an important question about how reliable such public domain dedications really are. The problem, explained in detail by PK, is that U.S. law provides for a 35 year termination of any license that a creator has imposed on his or her work. This mechanism (found in section 203 of the copyright law) is designed to give a creator or his or her heirs a second chance to capture the value of a work, but it means that a license dedicating a work to the public domain, or any other type of open license, may not actually be permanent even when it says it is irrevocable ..."