It's Great That Winnie The Pooh Is In The Public Domain; But He Should Have Been Free In 1982 (Or Earlier)

from the think-of-all-the-culture-lost dept

It’s been four years now since the US finally started allowing old works to enter the public domain after decades in which cultural landlords continually moved to actively remove works from the public domain. Every year since the US got back into the public domain business, we’ve happily run a game jam, encouraging people to make use of these newly public domain works, and this year is no different (check out the Gaming Like It’s 1926 game jam page if you’re interested!).

I’m not entirely sure why, but this year, people seem even more interested than in the past few years. We’ve received way more initial signups than in the past, and more community activity as well. I’m also seeing (outside of the game jam), more public awareness of these newly public domain works than in the past, when it sometimes felt like a more muted public level of interest. Hell, even Ryan Reynolds was quick to jump on the newly public domain to help promote the MVNO Mint Mobile, in which he owns the largest stake.

Perhaps some of the excitement over this year’s public domain entries is the fact that the public are now getting used to the fact that every January 1st, new works enter the public domain. Or, perhaps it just has to do with the prominence of some of this year’s works. When the 1923 class of the public domain came around, many people noted that there weren’t very many “big” cultural touchstones in that batch — and to some extent the same has been true over the last few years’ batches as well. The Great Gatsby had name recognition, but still felt kind of old and a bit stuffy.

This year’s inclusion of the first Winnie-the-Pooh book seems to have changed some of that. But, as Alan Cole rightly points out, it’s a complete travesty that Pooh wasn’t in the public domain decades ago.

As we’ve explained at length before, copyright term extension makes no sense, legally, ethically, or morally. The entire point of copyright law (in the US) is that it is an economic incentive to creators: if you create something creative and new, we give you an exclusive right to copy it for this length of time. If the work was then created, the incentive was enough. The deal was made. Clearly, the copyright term at the date of creation served its purpose — to make sure there was enough incentive to create that work. Extending the term of works already created does absolutely nothing to re-incentivize those old works. They were already made. All it does is take things away from the public. The public promised you an exclusive right for a certain number of years, and at the end the public was supposed to get access to those works.

In the case of Pooh, when A.A. Milne created it, copyright term in the US was 28 years, though it could be renewed for another 28 years. Thus, the maximum copyright that Milne could have possibly expected in the US was 56 years. In other words, he knew that when he published the work in the US, it would enter the public domain here by 1982 at the latest. The fact that Milne was British has no bearing on this, since he still chose to publish in the US under these rules, and that was clearly enough incentive at the time. (For what it’s worth, as I understand it, when he published the works in the UK, the term at the time was “life of the author plus 50” and seeing as he died in 1956, it would be expected that his works would enter the public domain in 2006).

Either way, it makes no sense at all that Pooh is only in the public domain now (and just the first book of Pooh). Cole’s piece goes much more in depth into the inherent trade-offs with copyright.

You may have noticed that most of the works discussed here are almost a century old. That is because 95 years is the length of copyright for many works; it is far too long. The most compelling arguments for copyright are about marshaling sufficient compensation to incentivize creators to work. And any work that still earns attention 95 years after publication has surely been lucrative enough that the author is compensated sufficiently. Or put another way, I doubt there were many artists or writers from 1926 who chose not to produce their best work because it might not receive royalties in 2022.

Extremely long-dated copyrights only matter to the wildly successful??and if you are expecting to be wildly successful, you are likely to produce your work anyway. The additional years of copyright are what economists would call ?inframarginal;? they don?t affect your decision because they don?t bring you close to the tipping point where you?d change your mind.

Given the costs of copyright??that fewer people enjoy the work, that legal wrangling eats up resources, and that we?d often prefer to allocate rewards in society towards more current innovations??it makes little sense to jealously guard intellectual property for as long as we do.

The issue, as always (which Cole doesn’t get into in his piece) is that many people — incorrectly — view copyright as some sort of moral right. Some of this is due to the concerted efforts by the copyright industry to pretend that this limited monopoly right is a form of “property” over the underlying work, and with that they have tried to establish some sort of analogy between tangible goods that you own and this limited legal right that was granted, with a time limit, in exchange for the act of creation.

But any rational look at the copyright system recognizes that’s (1) never been the purpose of copyright in the US and, even more importantly (2) does significantly more harm to the public than good — and that, therefore, it goes directly against the constitutional clause on copyrights, which only allows Congress to create a copyright system that “promotes the progress of science” (the useful arts part is about patents). Giving Disney the rights to control a cartoon bear for basically four extra decades doesn’t do that at all.

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Comments on “It's Great That Winnie The Pooh Is In The Public Domain; But He Should Have Been Free In 1982 (Or Earlier)”

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That One Guy (profile) says:

'No fair, only we're allowed to break that deal!'

While I don’t engage in the practice myself(no need) the fact that the deal that is copyright(limited exclusivity in exchange for public ownership after the term was up) was violated again, and again, and again makes it just a wee bit hard to be sympathetic to the large companies/organizations who constantly complain about the scourge that is copyright infringement and how dastardly those that engage in it are.

If you violate the rules of a deal you agreed to you don’t get to expect to be taken seriously should you then complain when the other person decides that they don’t need to follow those rules either.

This comment has been deemed insightful by the community.
Samuel Abram (profile) says:

What's more,

In 1926, a work of authorship would only be copyrighted if you chose to copyright it rather than it be automatically copyrighted once it’s fixed in a tangible form. I think piracy rapidly increased once copyright converted from an "opt-in" to an "opt-out" system.

Anonymous Coward says:

Re: Re: What's more,

You can’t even officially "opt-out". There is no real way to do that.

Not true in the USA: "It is well settled that rights gained under the Copyright Act may be abandoned. But abandonment of a right must be manifested by some overt act indicating an intention to abandon that right. See Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960)." [Micro-Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998).]

From the same page:
"The Ninth Circuit Model Civil Jury Instructions, 2007 edition, Section 17.19, states a model for the text that courts give to juries:
17.19 COPYRIGHT – AFFIRMATIVE DEFENSE – ABANDONMENT
The defendant contends that a copyright does not exist in the plaintiff’s work because the plaintiff abandoned the copyright. The plaintiff cannot claim ownership of the copyright if it was abandoned. In order to show abandonment, …"

The page gives some simple examples of phrasing that should constitute this "overt act". Some more paranoid people suggest using CC0 instead; but despite such paranoia, nobody can point to an example of a US court rejecting a simpler public domain declaration.

(I hereby place this Techdirt comment into the public domain.)

Paul B says:

Re: Re: What's more,

In general "Public notice" that you will not enforce copyright has been considered enough to show you have released all interest in a work.

This has of course backfired as clearinghouse’s have attempted to sue creators who have released there own work by claiming the clearing house is the owner. An apparently legal claim that can be made on public domain material. They just can’t win in court on the copyright claim.

PaulT (profile) says:

Re: Re: What's more,

Not true, AFAIK it’s certainly possible to announce that you’re moving your work into the public domain voluntarily without waiting for the predetermined date. Most people don’t of course, but I believe it’s an option. Also, depending on your definition of "opt out", there’s CC licences and other schemes available to reduce the coverage of the standard copyright licence.

What you can’t do is stop the copyright cartels from falsely claiming infringement on things that are actually PD, and that’s something that requires work to change the law so that false claims have some real punishment.

Anonymous Coward says:

Re: What's more,

I think piracy rapidly increased once copyright converted from an "opt-in" to an "opt-out" system.

a) We shouldn’t be using the copyright-maximalist term "piracy".
b) This happened in 1978 in the USA, when home cassette recorders and Betamax had just been invented, and Xerox machines cost 10-25 cents per page unless you worked at a large company and could copy hundreds of pages without them noticing (as with the Pentagon Papers, copied under cover of night).

So, no, opt-in vs. opt-out had little to do with the rise in home copying, and was correlated only because that’s when the technology came out. The "Home Taping Is Killing Music" propaganda started in October 1981, and the infamous "Boston strangler" VCR hearings in April 1982—which is around the time any form of home copying became affordable to the average person.

Samuel Abram (profile) says:

Re: Re: What's more,

To quote Naughty by Nature, "let me take it, frame by frame it":

a) to be fair, copyright infringers use the term "pirate" themselves (see "the pirate bay") and maximalists now use the term "theft". So this point is moot.
b)while it is true that copying in the US became possible by second parties (i.e. the consumers) thanks to video- and audio-cassettes, creative commons wasn’t a thing until twenty-one years ago. So that means the only works of authorship you were allowed to share were those in the public domain (that’s how remix shows such as Mystery Science Theater 3000 were able to still sell some of their old episodes, such as Eegah and "Manos" The Hands of Fate because neither one of those films had been copyrighted at the time when you needed formalities). Unless you were a knowledgeable copyright lawyer, there was no way you would know which one was in the public domain and which one wasn’t. If we still had the opt-in, renewable system like we had before 1978, there would probably more respect for a system that didn’t automatically make you the enemy for sharing something with a friend.

Thad (profile) says:

Re: Re:

They licensed the rights starting in the ’60s but finally bought them out entirely in 2001.

And while the first book is now public domain, and the second one will be in two years, Disney still owns the "Winnie the Pooh" trademark, all the movies and TV series, and the Disney version of the character designs. You’re free to publish your own Winnie-the-Pooh stories now, but you’d better not include any illustrations where he’s wearing a red shirt.

And you’d better not include Tigger, either. At least not for two more years.

Ian W (profile) says:

Re: Re: fixed it ...

"Congress did have a little something to do with it"
So does a rubber stamp. I can’t say Disney literally wrote the legislation text as Mike has often pointed out other lobbyists have done in other fields (telecom, emissions regulation, safety), but the extension literally came about to meet Disney’s demands. Dsney got as much as they thought they could get and so allowed the proposed law to go proceed.

PaulT (profile) says:

Re: Re: fixed it ...

"Yeah, but the owners of the Star Wars stuff NEED at least 95 years to make a net profit"

According to them? Yeah, they do….

https://www.theatlantic.com/business/archive/2011/09/how-hollywood-accounting-can-make-a-450-million-movie-unprofitable/245134/

(Apologies if this is what you were referring to with the actors comment, I just thought it’s worth stressing)

Anonymous Coward says:

Long copyrights were lobbied for by Disney and corporations. Who know they will lose control of creations like mickey mouse at some point copyright is there to allow creators to make money and create new art no artist or writer creates art because of they money that’s to be earned in 100 years when they will be dead . Most books from the 30s or 50s are now forgotten, since sherlock. Holmes went out of copyright it has allowed various new TV and film adaptions to be made and allowed people to make various versions of the character like the BBC series Sherlock
Copyright should maybe be 40 years at most on music and books most music from the 40s is completely forgotten
apart from classical music and great musicals from Broadway
Most books from the 40s are not read by anyone as the material maybe sexist racist or old fashioned.
Great art like Dickens and the beatles will still be relevant in 50 years even if it’s out of copyright as it has lasting artistic
value
Most tv programs from the 60 s are forgotten or unwatchable due to changing attitudes and relevance to modern life
A program like UK, s top of the pops or soul train is still interesting as it is maybe the only video record of certain singers or pop groups singing thier hit songs live we have
and the sound of pop music changes every 10 years due to recording tech and styles of music in vogue

Arijirija says:

Questions for Walt Disney

"Mr Walt Disney, I understand you instructed your lawyers after your death, to extend the copyright on Mickey Mouse and other Disney productions. Could we see the transcripts of those instructions?"

"Mr Walt Disney, our reading of the US Constitution gives us to understand that the purpose of copyright is to provide an incentive for the production of new worls. Have you been instructing your lawyers not to release your new works that have followed in the wake of your death?"

"Mr Walt Disney, could you please inform us on the methods you use to bank your posthumous earnings? And the methods you use to spend them, and what you spend them on?"

DNY (profile) says:

The Copyright Clause

I’m glad to see the idea I’ve floated that the copyright clause specifies "authors" and that the current system is in violation of the plain meaning of the US Constitution is getting some traction with TechDirt writers. (Reread the last paragraph of the article if you missed that.)

Whenever I have pointed it out, someone chimes in with a "well that’s not the way things are now" non-argument against the unconstitutionality of the present system.

We supposedly have an originalist majority on the SCOTUS now, maybe it’s time for someone to mount a challenge?

Anonymous Coward says:

The copyright clause was the twin brother of the peculiar institution of slavery. Slavery allowed the wealthy to own some of the people all of the time. Copyright allows them to own all of the people some of the time. But since it’s practically the entire last century of culture, that’s a whole lot of time altogether.

That One Guy (profile) says:

Re: Hyperbole will destroy the world

If you want to help copyright maximalists by making it easier for people to dismiss those critical of current copyright law by all means keep comparing it to literal slavery, otherwise you’re only shooting yourself in the foot by doing so. There’s plenty of room to criticize locking up culture and hobbling creativity without making the jump to owning people as property.

Space5000 (profile) says:

One Hope I Wondered...

It’s very obvious that many works being stuck under copyright for over 60 years is bad, as it clearly damages the purpose of Copyright. I hate that it feels so "hard" for laws around the world to start fixing it by <i>reducing</i> it’s term back down, even by just 10 years (both after death and fixed years).

Reducing it would automatically generate more amazing works into public domain, but such move to reduce the term would likely receive backlashes, usually more likely, by many corporations, which depends how far it’s reduced. Sadly the copyright law rulers would likely pander to them, which is the problem here I think.

I feel that if there were a lot of protest around it (including physical protests) calling out the extensions with criticism by properly explaining that current copyright is unconstitutional, with good evidence, and properly pressure congress to not listen to corporations fighting against that fact and reducing copyright term, then maybe the chance of reducing copyright would be higher.

Anonymous Coward says:

Copyright Extension = Disincentive to Create

The entire point of copyright law (in the US) is that it is an economic incentive to creators: if you create something creative and new, we give you an exclusive right to copy it for this length of time. If the work was then created, the incentive was enough. The deal was made.

My thought on this is that an extension of this term is actually a disincentive
for creators to produce new "great works" since they can profit longer from the one/few succesful work(s) they did create so many years ago…

Anonymous Coward says:

The optimal length of copyright

Using existing data on recordings and books we obtain a point estimate of around 15 years for optimal copyright term with a 99% confidence interval extending up to 38 years.

According to Rufus Pollock’s 2009 paper Forever Minus a Day? Calculating Optimal Copyright Term [PDF], the optimal length of copyright is about 15 years. No X years after death. No extensions. And that’s just an economic argument for shorter copyright terms, to say nothing of the social and moral arguments.

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