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Free Expression, Open Internet

Beyond the Elephants’ Graveyard: Recent Additions to the Public Domain

Recent cases, disputes, and announcements have renewed interest in the public domain and the ways that works protected by copyright wind up there. This interest brings with it questions about copyright terms, private works incorporated into public law, and efforts by governments and others to make information more available. As we explore these questions, there is a growing sense that the public domain is far more than an elephants’ graveyard for works whose copyright terms are expiring.

Waiting for works to enter the public domain requires tremendous patience and close study of the Copyright Act. First, one has to know exactly when a work’s copyright protection expires. Although the reflexive answer is “life +70 or 95 years,” Cornell University’s immensely helpful and mildly depressing chart, “Copyright Term and the Public Domain in the United States” points us toward the more correct and lawyerly answer: it depends, on matters like whether, when, or where the work was published.

Aside from figuring out a work’s term of protection under the Copyright Act, we also have to contend with the possibility of legislative extension. The most recent extension was intended in part to save Mickey Mouse from the clutches of the public domain, leading Tom W. Bell to posit the “Mickey Mouse curve”: a correlation between the looming expiration of Steamboat Willy’s copyright protection and term extension via federal legislation. It will be a while before we can test this theory again: copyright has Mickey Mouse covered until 2024.

Copyright term extensions have proven remarkably impervious to evidence that they cause more harm than good. The independent Hargreaves Report, commissioned by Prime Minister Cameron in 2010, concluded that “[e]conomic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which may result from the extension of copyright term beyond its present levels.” Yet after due consideration of the Hargreaves Report, the UK extended the term for copyright in sound recordings by an additional 20 years in 2013. Term extension also found its way into the recently concluded Trans-Pacific Partnership Agreement, just the latest instance of term harmonization as a one-way ratchet.

Even with the hypothetical protection of longer terms, peculiarities of registration, transfers, and renewals have led to a few recent notable additions to the public domain. The most celebrated is “Happy Birthday,” which entered the public domain after an undisclosed settlement in a case where a court ruled that the putative rightsholder did not own the rights to the lyrics. So ends our national nightmare of chain-restaurant variants of the most recognized song in the English language. (It is hoped.)

A recent brewing dispute over copyright and the public domain concerns the Bluebook, the “Uniform System of Citation” that all law students learn to live with. Last October, Christopher Sprigman sent a letter to outside counsel for the Harvard Law Review (which co-owns the Bluebook along with the law reviews at Columbia, Penn, and Yale) stating that Public would publish an electronic version of the 10th edition of the Bluebook, whose copyright was never renewed. The letter goes on to say that because “numerous courts have mandated use of The Bluebook . . . [it] has been adopted as an edict of government and its contents are in the public domain.”

There is an intuitive sense of justice to Public Resource’s contention. If courts require us to use the Bluebook, why is the Bluebook not freely available to those who must follow those courts’ rules? Public Resource is making the same contention with annotated state statutes and public safety codes incorporated into law. Once the law requires certain individuals or organizations to access, consult, and comply with provisions in a protected work, the monopoly over that work conferred by copyright becomes much more problematic. If statutes are in the public domain, shouldn’t their official versions or the rules they incorporate by reference be so as well?

CDT took a similar stance years ago with respect to the information that federal lawmakers rely on when crafting new statutes. The Congressional Research Service (CRS) is a highly professional and effective research arm of the Library of Congress. When lawmakers hold hearings or legislative meetings on a particular topic, a CRS report often precedes congressional action. But those reports, although taxpayer-funded and contributing to the creation of new public law, are not publicly available. After concluding they were among the “10 most wanted government documents,” CDT started OpenCRS to help those who wanted to “liberate” CRS reports. OpenCRS no longer operates today, but sites like Wikileaks still provide access to some CRS reports and individual legislators sometimes make them available.

Public access to laws, building codes, CRS reports, or even the Bluebook is not just about copyright. It is also about equality. The Obama Administration’s announcement last October (which I am shamefully late in commending) that it would expand the use and availability of openly licensed educational resources was titled “Providing Equitable Access to Education for All Learners” and starts off with a citation to Article 26 of the United Nations Declaration of Human Rights (“Everyone has the right to education”).

Like open licensing, a vibrant public domain can further equality, education, and access to information. It also can fuel intellectual curiosity. (Want to know what space sounds like? NASA’s contributions to the public domain have you covered.) Fostering this vibrancy requires actively populating the public domain rather than just waiting for works to end up there. It also requires reassessment of basic assumptions behind copyright policy (such as equating “harmonization” with longer copyright terms). But the effort is worthwhile. After all, the public domain is a shared resource: we get out what we put in.

We’re taking
part in Copyright Week,
a series of actions and discussions supporting key principles that
should guide copyright policy. Every day this week, various groups are
taking on different elements of the law, and addressing what’s at stake,
and what we need to do to make sure that copyright promotes creativity
and innovation.