The Incredible Shrinking Public Domain

"... In 2003, many of those who rely on the public domain had their hopes dashed by Eldred v. Ashcroft, the case that upheld the 20-year extension to the copyright term. (The effects of repeated term extensions are explored in more detail below.) The Constitution declares that copyrights must only be 'for limited times' and that Congress can only create exclusive rights to 'promote the progress' of knowledge and creativity. Despite those limitations, in Eldred, the Supreme Court held that Congress could retrospectively lengthen copyright terms – something that seemed neither 'limited' nor aimed at promoting progress. (It is hard to incentivize dead authors!) But 2012 was to hold in store an even more grievous blow to the public domain. In Golan v. Holder, the Supreme Court held that Congress can remove works from the public domain without violating the Constitution. Yes, that is right – even if the public now enjoys unfettered access to a work, Congress is allowed to take that work out of the public domain and create a new legal monopoly over it. What’s more, the Court declared, Congress can do so even when it is clear that the new right 'does not encourage anyone to produce a single new work'!  In 2003, many of those who rely on the public domain had their hopes dashed by Eldred v. Ashcroft, the case that upheld the 20-year extension to the copyright term. (The effects of repeated term extensions are explored in more detail below.) The Constitution declares that copyrights must only be 'for limited times' and that Congress can only create exclusive rights to 'promote the progress' of knowledge and creativity. Despite those limitations, in Eldred, the Supreme Court held that Congress could retrospectively lengthen copyright terms – something that seemed neither “limited” nor aimed at promoting progress. (It is hard to incentivize dead authors!) But 2012 was to hold in store an even more grievous blow to the public domain. In Golan v. Holder, the Supreme Court held that Congress can remove works from the public domain without violating the Constitution. Yes, that is right – even if the public now enjoys unfettered access to a work, Congress is allowed to take that work out of the public domain and create a new legal monopoly over it. What’s more, the Court declared, Congress can do so even when it is clear that the new right “does not encourage anyone to produce a single new work”!