Why Johnny Can't Read Any New Public Domain Books In The US: Because Nothing New Entered The Public Domain

from the and-won't-for-many-years dept

Every year, January 1st is "public domain day" around the globe. It's the day when all works that have had their copyrights expire enter the public domain, since copyright term is based on the year of publication, rather than the exact date. While some parts of the world still have something to celebrate on public domain day -- such as how the works of James Joyce are now in the public domain in the EU, here in the US as we've noted in the past, we're left waiting... for nothing. Because thanks to massive changes to copyright law, as well as copyright term extension, absolutely nothing has or will enter the public domain for many years in the US (minus a specific declaration by the copyright holder... and even then it's not entirely clear that qualifies).

The good folks at the Center for the Study of the Public Domain at Duke University put together a depressing list each year of what would have gone into the public domain under copyright law if the law prior to 1978 remained in effect. You can check out this year's unfortunate list of works seized from the public in a retroactive one-sided renegotiation of the deal the copyright holders had with the public. These works should be in the public domain, and they're not... and the public got nothing in exchange for having these works taken away from us. Pulling from their writeup, here are just a few of the works that I thought you might find interesting:
  • Rudolf Flesch's Why Johnny Can't Read: And What You Can Do About It
  • J.R.R. Tolkien's The Return of the King, the final installment in his Lord of Rings trilogy
  • Michihiko Hachiya’s Hiroshima Diary: The Journal of a Japanese Physician, August 8–September 30, 1945, translated by Warner Wells, md
  • Evelyn Waugh’s Officers and Gentlemen, the second book in his Sword of Honour trilogy
  • C.S. Lewis' The Magician’s Nephew, the sixth volume his The Chronicles of Narnia
  • Vladimir Nabokov's Lolita
  • Jerome Lawrence & Robert E. Lee's play about the Scopes “Monkey Trial,” Inherit the Wind
  • Isaac Asimov's The End of Eternity
  • Jack Finney's The Body Snatchers
  • Arthur C. Clarke's Earthlight
  • Elvis Presley's first TV appearance (on Louisiana Hayride, March 5, 1955)
  • Episodes of "I Love Lucy"
  • The first issue of William F. Buckley's "National Review."
  • "The Seven Year Itch," directed by Billy Wilder; starring Marilyn Monroe and Tom Ewell
  • "Lady and the Tramp," Walt Disney Productions' classic animation
  • Alfred Hitchcock's "To Catch a Thief," starring Cary Grant and Grace Kelly
  • Two of James Dean’s three major motion pictures: "East of Eden," directed by Elia Kazan and co-starring Raymond Massey and Julie Harris; and "Rebel Without a Cause," directed by Nicholas Ray and co-starring Natlie Wood, Sal Mineo, and Jim Backus
They also list out a bunch of songs:
Unchained Melody (Hy Zaret & Alex North), Ain't That a Shame (Antoine "Fats" Domino and Dave Bartholomew), Blue Suede Shoes (Carl Perkins), Folsom Prison Blues (Johnny Cash), The Great Pretender (Buck Ram), Maybellene (Chuck Berry, Russ Fratto, & Alan Freed), and Tutti Frutti (Richard Penniman (aka Little Richard), Dorothy LaBostrie, & Joe Lubin),
As they point out, it's really even more ridiculous than this, because under pre-1978 copyright law, most works didn't even go to the full 56 years of copyright protection. Instead, the vast majority of works gave up their copyright after 28 years. If the rates from the time held up, about 85% of the works created in 1983 would be in the public domain today. Instead, they'll be locked up until most of us are dead. Isn't that wonderful?

The thing is, with the list of works from 1955 above, when they were all created, the maximum term of copyright of 56 years was a perfectly acceptable trade-off for those creators. They got their monopoly, and they created their works. What I can't understand is what the logic is in extending those rights retroactively. Clearly the incentive to create was fine as it was. Why should it change after the work was created?

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  1. identicon
    Anonymous Coward, 4 Jan 2012 @ 5:58am

    Re: Re: A little confused

    You might want to have a gander at the US Constitution.


    The Anti-Monopoly Origins of the Patent and Copyright Clause” by Tyler T Ochoa and Mark Rose (2002):
    At the Constitutional Convention of 1787, both James Madison of Virginia and Charles Pinckney of South Carolina submitted proposals to give Congress the power to grant copyrights.... These proposals were referred to the Committee on Detail. Later, provisions which had not been acted upon by the Committee on Detail were referred to the Committee of Eleven (of which Madison was a member), which drafted the Patent and Copyright Clause as it exists today, and recommended its adoption. The clause was unanimously approved by the delegates with no debate.

    The language of the Clause is ambiguous when it speaks of “securing” exclusive rights. For the next forty-seven years, this meaning of this term would be debated, with proponents of perpetual copyright arguing that “securing” meant the affirmation of pre-existing rights, and proponents of the utilitarian view arguing that “securing” meant nothing more than “to obtain” or “to provide.”

    (Emphasis added.)

    In Eldred v Ashcroft (2003), Justice Ginsburg decided that the Supreme Court would not enforce the “promote the progress” quid pro quo.
    [P]etitioners contend that the CTEA’s extension of existing copyrights does not “promote the Progress of Science” as contemplated by the preambular language of the Copyright Clause. Art. I, §8, cl. 8. To sustain this objection, petitioners do not argue that the Clause’s preamble is an independently enforceable limit on Congress’ power... Rather, they maintain that the preambular language identifies the sole end to which Congress may legislate. . . .

    [I]t is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives. . . .

    We note, furthermore, that patents and copyrights do not entail the same exchange, and that our references to a quid pro quo typically appear in the patent context.


    In Marbury v Madison, of course, the Court proclaimed that it was the final decider on the Constitution. Since then, Congress has gradually come around to the idea that they'll pass whatever legislation they feel like, and see what sticks in court.

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