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Something is afoot with copyright this Public Domain Day | John Naughton


Here’s a reason to be cheerful this morning: it’s Public Domain Day, ie the day on which a new batch of hitherto copyrighted works comes out of copyright and enters the US public domain – the zone that consists of all the creative work to which no exclusive intellectual property rights apply. For those readers who do not reside in the US, there is perhaps another reason for celebrating today, because copyright terms are longer in the US than they are in other parts of the world, including the EU and the UK. And therein lies a story about intellectual property laws and the power of political lobbying in a so-called liberal democracy.

Among the works liberated for the delight of American citizens this morning are: Virginia Woolf’s To the Lighthouse; the final Sherlock Holmes stories by Arthur Conan Doyle; Fritz Lang’s seminal science-fiction film Metropolis; Alfred Hitchcock’s first thriller; and compositions by Louis Armstrong and Fats Waller. The interesting thing is that these were originally supposed to enter the public domain in 2003, but as Jennifer Jenkins, director of Duke University’s Center for the Study of the Public Domain puts it, “before this could happen, Congress hit a 20-year pause button and extended their copyright term to 95 years”.

The mechanism by which this legal heist was implemented was the 1998 Copyright Term Extension Act (AKA “The Sonny Bono Act” or “The Mickey Mouse Protection Act” depending on your satirical tastes). In passing it, American legislators were simply continuing business as usual in the intellectual property business. The story began in 1790, when Congress enacted the first copyright law, which provided protection for authors for 14 years (plus a further 14 if the author requested it). The term was gradually lengthened in small increments by Congress until 1976, when it was extended by 19 years to 75 years and then in 1998 by the Sonny Bono Act. So, as the legal scholar Lawrence Lessig puts it, “in the 20 years after the Sonny Bono Act, while 1m patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term”.

You don’t have to be Sherlock Holmes to figure out how this happened. (Hint: an inspection of campaign contributions to US legislators in the relevant years may be illuminating. And of course there was also the fear that Mickey Mouse might make his escape into the public domain.) But the end result is that American citizens have had to wait two decades to be free to adapt and reuse works to which we Europeans have had easy access.

As it happens, Sherlock Holmes has a topical relevance, because today the US copyright on the last two Sherlock Holmes stories by Arthur Conan Doyle – from The Case-Book of Sherlock Holmes expires. This must be depressing news for the Conan Doyle Estate Ltd, which has been almost as assiduous an enforcer of intellectual property rights as was James Joyce’s grandson, Stephen Joyce, in the years when Ulysses was in copyright.

As Jenkins tells the story, the estate’s claim was that the characters of Holmes and Dr Watson remained protected by copyright even if the books themselves had escaped to the public domain. This was eventually challenged by Leslie Klinger, a lawyer and Sherlock Holmes scholar of some renown. The case went through a series of American courts until 2014, when it finally ran into the immovable object known as Judge Richard Posner of the seventh circuit.

“The Doyle estate’s business strategy,” Posner ruled in a characteristically acerbic judgment, “is plain: charge a modest licence fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand … only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice – a form of extortion … It’s time the estate, in its own self-interest, changed its business model.”

The issue highlighted by Public Domain Day is not that intellectual property is evil but that aspects of it – especially copyright – have been monopolised and weaponised by corporate interests and that legislators have been supine in the face of their lobbying. Authors and inventors need protection against being ripped off. It’s obviously important that clever people are rewarded for their creativity and the patent system does that quite well. But if a patent only lasts for 20 years, why on earth should copyright last for life plus 70 years for a novel? You only have to ask the question to realise that the founders of the American republic at least got that one right. Happy new year.

What I’ve been reading

Dusk for Musk
Time to Close Down the Elon Musk Circus” is a great Politico column by Jack Shafer on why journalists should stop obsessing about Elon Musk and Twitter.

Evil presents
There is a wonderful blogpost on the Free Press by Walter Kirn called O Holy Crap, about the abysmal quality of many modern products.

Chats off
The AI expert Murray Shanahan has written a very thoughtful paper on a current obsession of the tech industry, large language models, available at arXiv.org.



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