If you are interested in copyright – or if you think copyright laws don’t really apply to you – you might want to look through this article from the Duke Law School Center for the Study of the Public Domain.
Take a moment to mourn the material we can not access, that we can not freely share with our patrons, and that may never be accessible to us!! (How many of our patrons would have enjoyed having a free copy of Green Eggs and Ham?)
Current copyright law is too often a tragedy for libraries, and for the communities we serve. Look at this list, published every year by this organization, and consider some ways you might work within copyright laws to help your patrons. And then be a voice of advocacy in your community to loosen these too-tight federal laws!!
What Could Have Entered the Public Domain on January 1, 2017?
Under the law that existed until 1978 . . . Works from 1960
The books To Kill a Mockingbird and Rabbit, Run, the films The Magnificent Seven and The Time Machine, and more. . .
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. But 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 1960 would enter the public domain on January 1, 2017, where they would be “free as the air to common use.” Under current copyright law, we’ll have to wait until 2056.1 And no published works will enter our public domain until 2019. The laws in other countries are different—thousands of works are entering the public domain in Canada and the EU on January 1.
What books would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.
- Harper Lee, To Kill a Mockingbird
- John Updike, Rabbit, Run
- Joy Adamson, Born Free: A Lioness of Two Worlds
- William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany
- Friedrich A. Hayek, The Constitution of Liberty
- Daniel Bell, The End of Ideology: On the Exhaustion of Political Ideas in the Fifties
- Arthur M. Schlesinger, Jr., The Politics of Upheaval: The Age of Roosevelt
- Dr. Seuss, Green Eggs and Ham and One Fish Two Fish Red Fish Blue Fish
- Scott O’Dell, Island of the Blue Dolphins
- John Barth, The Sot-Weed Factor
- Jean-Paul Sartre, Critique de la raison dialectique
The books above are but a fraction of what would be entering the public domain on January 1. Imagine them being freely available to students and teachers around the world. Readers interested in iconic stories of courage in the face of racial injustice, or middle class America in the late 1950s, or just great literature, would have something to celebrate. In the current political climate, Shirer’s work, and also those of Hayek, Bell, and Schlesinger, might provide food for thought. And Dr. Seuss’s beloved books would be legally available for free online for children (of all ages).
You would be free to use these books in your own stories, adapt them for theater, animate them, or make them into a film. You could translate them into other languages, or create accessible Braille or audio versions. You could read them online or buy cheaper print editions, because others were free to republish them. Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print—see here, here, and here. Take, for example, The Conscience of a Conservative by Barry Goldwater—like the works listed above, it was published in 1960; but unlike those works, it’s in the public domain because the copyright was not renewed. You can legally download it for free, and the purchase price for an eBook is $0.99, instead of $10 or $20.
Imagine a digital Library of Alexandria containing all of the world’s books from 1960 and earlier, where, thanks to technology, you can search, link, annotate, copy and paste. (Google Books has brought us closer to this reality, but for copyrighted books where there is no separate agreement with the copyright holder, it only shows three short snippets, not the whole book.) Instead of seeing these literary works enter the public domain in 2017, we will have to wait until 2056.
The Frozen-in-Time Machine
Consider the films and television shows from 1960 that would have become available this year. Fans could share clips with friends or incorporate them into homages. Local theaters could show the full features. Libraries and archivists would be free to digitize and preserve them. Here are a few of the movies that we won’t see in the public domain for another 39 years.
- The Time Machine
- The Apartment
- Inherit the Wind
- The Magnificent Seven
- Ocean’s 11
- The Alamo
- The Andy Griffith Show (first episodes)
- The Flintstones (first episodes)
It’s Now or . . . 2056?
What 1960 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely use some of the great music from this year, January 1, 2017 would have been a rocking day for you under earlier copyright laws. Elvis Presley’s hit song “It’s Now or Never” (Wally Gold, Aaron Schroeder) would be available. So would “Only the Lonely (Know the Way I Feel)” (Roy Orbison, Joe Melson), “Save the Last Dance for Me” (Mort Shuman, Jerome Pomus), and “Itsy Bitsy Teenie Weenie Yellow Polka Dot Bikini” (Paul J. Vance, Lee Pockriss). Your school would be free to stage public performances of the songs from the musical Camelot (Alan Jay Lerner, Frederick Loewe). Or you could set a video to Harry Belafonte’s “Grizzly Bear” (Harry Belafonte, Robert DeCormier, Milt Okun) from Swing Dat Hammer. Today, these musical works remain copyrighted until 2056.
Science from 1960—copyrighted research, still behind paywalls
1960 was another significant year for science. Max Perutz and Sir John Kendrew published articles on the structure of hemoglobin and the structure of myoglobin, respectively, and Robert Burns Woodward published an article describing a total synthesis of chlorophyll. (All three later won Nobel Prizes in Chemistry.) Theodore Maiman demonstrated the first working laser, a ruby laser. And the US launched its first successful weather satellite, TIROS-1.
If you follow the links above (and you do not have a subscription or institutional access), you will see that these 1960 articles are still behind paywalls. You can purchase the individual articles from the journal Nature for $32. A distressing number of scientific articles from 1960 require payment or a subscription or account, including those in major journals such as Science and JAMA. And the institutional access that many top scientists enjoy is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions.
It’s remarkable to find scientific research from 1960 hidden behind publisher paywalls. Thankfully, some publishers have made older articles available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. In addition, some older articles have been made available on third party websites, but this is not a stable solution for providing reliable access to science. Third party postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit. Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts.
Not all scientific publishers work under this kind of copyright scheme. “Open Access” scientific publications, like those of the Public Library of Science, are under Creative Commons licenses, meaning that they can be copied freely from the day they are published.
Works from 1988!
Most of the works highlighted here are famous—that is why we included them. And if that fame meant that the work was still being exploited commercially 28 years after its publication, the rights holders would probably renew the copyright. But we know from empirical studies that 85% of authors did not renew their copyrights (for books, the number is even higher—93% did not renew), since most works exhaust their commercial value very quickly.
Under the law that existed until 1978 . . . Up to 85% of all copyrighted works from 1988 might have been entering the public domain on January 1, 2017.
That means that all of these examples from 1960 are only the tip of the iceberg. If the pre-1978 laws were still in effect, we could have seen 85% of the works published in 1988 enter the public domain on January 1, 2017. Imagine what that would mean to our archives, our libraries, our schools and our culture. Such works could be digitized, preserved, and made available for education, for research, for future creators. Instead, they will remain under copyright for decades to come, perhaps even into the next century.
Perhaps the most troubling aspect of the current copyright term is that in most cases, the cultural harm is not offset by any benefit to an author or rights holder. Unlike the famous works highlighted here, the vast majority of works from 1960 do not retain commercial value, but they are presumably off limits to users who do not want to risk a copyright lawsuit. This means that no one is benefiting from continued copyright, while the works remain both commercially unavailable and culturally off limits. The public loses the possibility of meaningful access for no good reason. You can read more about the current costs associated with orphan works—works that are still presumably under copyright, but with no identifiable or locatable copyright holder—here and here. Importantly, the US Copyright Office has been engaged in efforts to find solutions to the orphan works problem. However, unlike other countries, the US has not enacted any such solutions.
The copyright term for works published between 1950 and 1963 was extended to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed (which is generally the case with famous works such as those we are highlighting). Many works published in 1960 are already in the public domain because the copyright holder did not comply with notice, renewal, or other copyright formalities. However, tracking down this information can be difficult (you can read just one of many illustrative examples collected by the Copyright Office here). Therefore, users often have to presume these works are copyrighted or risk a lawsuit (only works published before 1923 are conclusively in the public domain). You can read more about copyright terms from this excellent chart and from the US Copyright Office’s guide.
It is also difficult to determine whether foreign works are in the public domain in the U.S. Generally speaking, as a result of international agreements, foreign works published after 1923 are still under copyright in the US as long as one of the following is true: they were published in compliance with US formalities, they were still copyrighted in their home countries as of 1996, or they were then published in the US within 30 days of publication abroad. You can learn more about copyright terms for foreign works from the Copyright Office guide here.
If you think publishers have not objected to this, you would be wrong. US copyright law has an exception that allows books to be reproduced in accessible formats, but this exception only applies to “authorized entities”—nonprofits or governmental agencies with a primary mission related to providing such services.
The law allows libraries and archives (not preservationists generally) to digitize works during the last 20 years of their copyright term, but only in limited circumstances: the library or archive first has to determine through a “reasonable investigation” that the work is not being commercially exploited and that they cannot obtain another copy of it at a reasonable price.
Under federal law at the time, these “musical compositions”—the music and lyrics—were subject to copyright, but the particular “sound recordings” embodying the musical compositions were not; federal copyright did not cover sound recordings until 1972. (Pre-1972 sound recordings are protected under some states’ laws.) So, for example, the musical composition “It’s Now or Never” written by Wally Gold and Aaron Schroeder would be federally copyrighted, but not Elvis Presley’s particular sound recording of that composition.
A Congressional Research Service study indicated that only 2% of works between 55 and 75 years old continue to retain commercial value. As explained above, many works from 1960 are technically in the public domain, but it is often difficult to conclusively determine public domain status, so users have to presume that they’re still under copyright.