Public Domain Day is here again: it should be an occasion for condemnation, not celebration

Once copyright’s walls come down, creative material enters the public domain. It is free for all to use, modify and build upon. It is part of the matrix from which future creativity springs. One of the best places to explore it and its importance is the Center for the Study of the Public Domain at Duke University. Its mission is “to promote research and scholarship on the contributions of the public domain to speech, culture, science and innovation, to promote debate about the balance needed in our intellectual property system, and to translate academic research into public policy solutions.” Each year, the Center looks at what works are finally entering the public domain in the US. Here are some of the riches that escaped copyright’s enclosure on 1 January, 2022 – the annual Public Domain Day:

the first Winnie-the-Pooh book from A. A. Milne, the first published novels from Ernest Hemingway and William Faulkner, the first books of poems from Langston Hughes and Dorothy Parker. What’s more, for the first time ever, thanks to a 2018 law called the Music Modernization Act, a special category of works – sound recordings – will finally begin to join other works in the public domain. On January 1 2022, the gates will open for all of the recordings that have been waiting in the wings. Decades of recordings made from the advent of sound recording technology through the end of 1922 – estimated at some 400,000 works – will be open for legal reuse.

The Center frames the moment as a celebration of creativity that is being unleashed. But as the list of books, music and films on the Public Domain Day 2022 page makes clear, these are all works that were written nearly 100 years ago. It is absurd that citizens have needed to wait this long. It means that works that were once up-to-the-minute are now necessarily old-fashioned, even if they are still masterpieces. When modern copyright was invented in 1710, term was just 14 years, renewable for another 14 years, which meant that works were still vibrantly contemporary when they entered the public domain – not quaint artefacts from a distant age.

Another page on the Center for the Study of the Public Domain site looks at what could have entered the public domain on 1 January 2021, but won’t for legal reasons explained below. Here are some of the books we nearly had last year:

  • Saul Bellow, Herzog
  • Philip K. Dick, Martian Time-Slip
  • Shirley Grau, The Keepers of the House (Pulitzer Prize for fiction, 1965)
  • Ken Kesey, Sometimes a Great Notion
  • Arthur Miller, After the Fall and Incident at Vichy
  • Joyce Carol Oates, With Shuddering Fall (her first novel)
  • Hubert Selby, Jr., Last Exit to Brooklyn
  • Gore Vidal, Julian

Some great films that won’t enter the public domain for decades:

  • Mary Poppins
  • Goldfinger
  • The Pink Panther
  • A Hard Day’s Night
  • A Fistful of Dollars
  • Zorba the Greek
  • Marnie

The list of music still trapped by copyright is also impressive:

  • The Beatles, A Hard Day’s Night, Can’t Buy Me Love, And I Love Her (w & m John Lennon & Paul McCartney)
  • It’s All Over Now (w & m Bobby Womack & Shirley Womack, recorded by The Rolling Stones)
  • As Tears Go By (w & m Mick Jagger, Keith Richards, & Andrew Loog Oldham, recorded by Marianne Faithfull)
  • You Really Got Me (w & m Ray Davies, recorded by The Kinks)
  • Songs from Fiddler on the Roof, including If I Were a Rich Man (w Sheldon Harnick & m Jerry Bock)
  • Oh, Pretty Woman (w & m Roy Orbison & Bill Dees)
  • Hang on Sloopy (as “My Girl Sloopy”, w & m Bert Russell & Wes Farrell)
  • Baby I Need Your Loving (w & m Eddie Holland, Lamont Dozier, & Brian Holland)
  • I Get Around (w & m Brian Wilson)
  • The theme song from The Addams Family (w & m Vic Mizzy)
  • The Ballad of Gilligan’s Isle (w & m Sherwood Schwartz & George Wyle)

The Center for the Study of the Public Domain explains why we will have to wait another four decades before being able to use and build on these works:

Current US law extends copyright for 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication. Prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years – an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1964 would enter the public domain on January 1, 2021. Under current copyright law, we’ll have to wait until 2060.

It is, of course, great that so many fine works from the 1920s entered the public domain on New Year’s Day in 2022. But it is a disgrace that few people alive today will be around when contemporary creations from the last couple of decades are finally liberated from behind the legal walls imprisoning them. It is a further demonstration of how warped and unbalanced copyright law has become, and hardly something to celebrate each year.

Featured image by the Center for the Study of the Public Domain.

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