Copyright has morphed into a “copywrong,” thanks to a little mouse named Mickey—whose initial appearance was inspired by Steamboat Bill Jr., a 1928 public domain movie starring Buster Keaton. He was the first of an empire of cartoon characters that proceeded to earn The Walt Disney Co. billions of dollars. When the time came for this little guy to enter the public domain, making him free for all to use, Disney and its powerful lobbyists convinced Congress to lengthen the term of copyright.
This law, introduced in 1998 and known as the Copyright Term Extension Act (CTEA), the Sonny Bono Copyright Term Extension Act, the Sonny Bono Act, or, derogatorily, the Mickey Mouse Protection Act, extended copyright to such a great degree that no new published works will enter the public domain until 2019. Mickey Mouse won’t enter the public domain until 2023, at which point, expect Disney to once again lobby for further term extensions.
New Copyright Terms
The CTEA lengthened copyright terms to life of the author plus 70 years, and for works of corporate authorship, to 120 years after creation or 95 years after publication, whichever comes first. The term for works published before 1978 was increased by 20 years and now provides protection for a total of 95 years after their publication date.
The following list, courtesy of Duke Law School’s Center for the Study of the Public Domain, illustrates those books that would have entered the public domain on Jan. 1, 2016, based on pre-CTEA copyright terms. This is not a complete list, but it does showcase some significant works that might have become available:
- Robert A. Heinlein, Starship Troopers
- Walter M. Miller Jr., A Canticle for Leibowitz
- Lorraine Hansberry, A Raisin in the Sun
- E.R. Braithwaite, To Sir, With Love
- William Burroughs, The Naked Lunch
- Richard Condon, The Manchurian Candidate
- Cornelius Ryan, The Longest Day
- Günter Grass, The Tin Drum
- Ian Fleming, Goldfinger
- Saul Bellow, Henderson the Rain King
- William Strunk Jr. and E.B. White, The Elements of Style
- C. Wright Mills, The Sociological Imagination
- Agatha Christie, Cat Among the Pigeons
In the U.S., no published works will enter the public domain this year or even next year. The only works that are clearly in the U.S. public domain are those published before 1923.
Who then really benefits from this extended term? Not authors, since their rights are usually assigned to the publishers, and not musicians, whose music belongs to the recording studio that pressed the vinyl record or the CD. What these entities own in common besides the manufacturing facilities are the distribution networks and channels. Copyright aside, this manufacturing and distribution monopoly is now threatened by the internet. Additionally, many creators were not happy with this model, especially those who understood and embraced the idea of sharing in order to create new works. However, they still want to be recognized and credited for their work and, certainly wherever possible, to monetize it.
The Birth of Creative Commons
A defining moment for copyright policy occurred with the Eldred v. Ashcroft suit filed in the U.S. District Court for the District of Columbia on Jan. 11, 1999. The suit claimed that the CTEA, with its elongated copyright terms, essentially violates the U.S. Constitution’s Copyright Clause, which states that copyright exists “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The plaintiff lost the case, but in some respects, it may have actually presented a philosophical win. The plaintiff’s lead attorney, Lawrence Lessig, currently the Roy L. Furman Professor of Law and Leadership at Harvard Law School, was deeply disheartened by the outcome of the case and its crippling effect on the public domain and went on to found Creative Commons.
Launched in 2001 as a nonprofit with support from the Center for the Study of the Public Domain, Creative Commons’ mission is to help “you legally share your knowledge and creativity to build a more equitable, accessible, and innovative world. We unlock the full potential of the internet to drive a new era of development, growth and productivity.” Lessig reinforces this mission in his 2004 book, Free Culture. He writes, “Its aim is to build a layer of reasonable copyright on top of the extremes that now reign. It does this by making it easy for people to build upon other people’s work, by making it simple for creators to express the freedom for others to take and build upon their work. Simple tags, tied to human-readable descriptions, tied to bullet-proof licenses, make this possible.”