The 1st of January 2019 marked the start of a new calendar year and a red letter day in the literary world. “Public Domain Day” informally came into life in the early 2000s as a celebration of the date when copyright protected works become available to the general public.
As a general rule, copyright protection lasts for the life of the creator, plus 70 years. This is the case under both US and UK law.
It follows that 70 years after an author’s death the copyrighted work becomes free to use, without charge, for any purpose whatsoever by the general public.
For many this is a cause of celebration, meaning that well known works can be remade and reinvented by the public without restraint.
For others it’s more troubling, as author’s estates find themselves losing control over their creations.
2019’s “Public Domain Day” has been made all the more significant, due to legislation which was passed in the US in the 1990’s.
Public Domain Day 2019: The End of an Era?
The Copyright Term Extension Act of 1998 extended the term of protection of certain copyrighted works by twenty years, increasing the normal ‘life plus 70’ to ‘life plus 90’ for many works. This meant that works first protected in 1923 or later, that were still protected by copyright in 1998, would not be available in the public domain until at least 2019.
The Walt Disney Corporation had lobbied for the passing of copyright extension legislation since 1990. This led the Extension Act to be dubbed sardonically as the ‘Mickey Mouse Protection Act’, as it protected the first appearance of the world’s most famous mouse (in the 1928 short film Steamboat Willie) under US copyright law until at least 2024.
The Extension Act was universally opposed by librarians and publishers of the day, who brought a lawsuit arguing that the Act was unconstitutional. The case made its way to the US Supreme Court in 2003 but the Extension Act was held to be lawful by a 7-2 majority.
As a result, works which would otherwise have been available for public adaptation, interpretation and reimagination, were frozen in time. This included the work of now prolific authors living and writing in post-war America.
The end of the twenty year extension period implemented by this legislation means that selected works by writers including: Rudyard Kipling, D.H Lawrence, Agatha Christie, P.G Woodhouse and Robert Frost are no longer protected by copyright law.
Reasons to be cheerful
When copyright protection expires, literary works are available for theatre companies, film companies and individuals to adapt the works without any requirement to secure the rights. The newly unprotected works will join the ranks of Shakespeare and Jane Austen as literary texts which are free to be reinterpreted by consumers. Jane Austen is one example of how an unprotected text can be developed into newer works of fiction, film and theatre, creating reinterpretations such as Bride and Prejudice (film), Pride and Prejudice and Zombies (novel), Austentatious (improvised theatre) and Clueless (film) – to name just a few.
The new public domain works will be published in full by Google Books and it will be open to publishing houses to release new editions, and profit from the works.
This free access to texts can have not only educational, theatrical and artistic benefits for readers, there is also money to be made in the world of public domain literature. From hosting fan fiction sites to creating merchandise, the creation of secondary works can be a significant revenue stream to entrepreneurs looking to benefit from the works available to the public.
Why some are not happy
But not everybody is happy about the most significant Public Domain Day in decades.
Not only will the estates of the authors lose the significant financial benefit that comes with holding the protected works, they will also lose control over what happens to those works, as they are effectively turned over to the public.
There will likely be a rush for publishing houses to quickly create ‘definitive editions’, with scholar’s notes and newly added introductions, as they seek to capitalise on this newly available material, and differentiate their own copies from other reproductions of the same text.
Whilst the new works will be available to all; they will be available in numerous formats, copies and editions of varying standards and qualities – something which the estate holders will have little control over.
There are also significant concerns about the US Congress’s powers to extend copyright protection in the first place. Any further extension of the generally accepted “life plus 70 years” is unlikely to be well received in the future, as the political landscape continues to shift, and rigid long-term intellectual property protection of creative work falls out of favour.
Debates rage on as to which approach (whether protectionist or open) is better for encouraging greater creativity overall.
The conflict between the protection of intellectual property assets and access to original artistic works has never been clearer than on Public Domain Day.
IP or not IP: That is the Question…
The longstanding question remains – at what point should literary work stop belonging to the deceased author’s estate and become the property of the public? To what extent should an author’s ownership of their texts be protected after death? Which interest should take priority – those of the creator, or those of the public at large?
The passing of the 1998 Extension Act sent a clear message in the US that the benefits of making these titles available to the public were seen to be outweighed by the intellectual property rights of the creator.
However, the backlash from the world of readers and the lack of subsequent extensions suggests that such a Public Domain Day on this scale may not be repeated in the near future.
It is clear that such works entering the public domain (where not simply reproduced) can reinvigorate old texts and as such being overly protective may hinder more than help.
It will be interesting to see what new works will be created as a result of the lapse of the copyright and to what extent the legal position of 1998 will be justified by today’s standards.