Why the U.S. Public Domain Might Start Growing Again

Changes in the political climate, driven by tech-minded advocacy groups, mean that it’s less likely that an extension to the copyright law will pass in 2018. That would open the way for works to enter the public domain in the U.S. for the first time in more than 40 years.

Two decades ago, a law named for one of the most famous musicians of the 1960s reframed the way copyright law worked.

That 1998 law, the Sonny Bono Copyright Term Extension Act [PDF], which was named in honor of the singer and congressman who died earlier that year, effectively halted a number of works from falling into the public domain, a key issue supported by Bono.

The act both extended the copyright of future works to 70 years after a creator’s death and increased the copyright term by two decades for works that were about to go into the public domain—works produced from 1923 on, most famously the early Mickey Mouse cartoon Steamboat Willie.

The law was controversial at the time—though it didn’t go as far as copyright supporters like the Motion Picture Association of America’s (MPAA) then-president, Jack Valenti, hoped for—and still receives frequent criticism for preventing the preservation of works that are nearly a century old. (Valenti suggested that copyright should be expanded to “forever less one day” [PDF], because copyright legally could not be expanded forever.)

But with the freeze on the public domain expected to thaw next year, there doesn’t appear to be a lot of momentum to produce a sequel to the law.

Ars Technica’s Timothy B. Lee reported this week that major association supporters of the law, like the MPAA and the Recording Industry Association of America, appear to be leaving the issue alone this time out. “We are not aware of any such efforts, and it’s not something we are pursuing,” an RIAA spokesperson told the outlet.

Additionally, the Authors Guild told Lee that it wouldn’t back additions to the copyright term and would actually support rolling back the current copyright rules slightly. “If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible,” an official told the outlet.

Part of the reason an extension to the copyright law seems less likely to happen this year might stem from the fact that there is more opposition to extending it. Lee notes that the Electronic Frontier Foundation (EFF) and Public Knowledge have become prominent in recent years, with the advocacy groups gaining public awareness from related issues like net neutrality and open access.

But, it’s not out of the realm of possibility that a grassroots movement, like that around open internet access, builds up around expanding the public domain. In fact, the Stop Online Piracy Act, a bill that attempted to battle online copyright infringement, eventually lost its footing because of such a public outcry.

And, even if copyright law stays in place in 2018, it probably won’t mean the end of the Mickey Mouse copyright fight. In a 2016 blog post, EFF Special Advisor Cory Doctorow suggested that Disney and other companies will inevitably use other tools, like trademarks, to protect their property.

“The ambiguity of overlapping trademarks and copyrights, combined with the very long duration of copyrights, and confused legal history about whether characters themselves get copyright when parts of their canon enter the public domain is a source of great mischief for many of the characters of the last century,” he wrote.

So even if the calculus of the public domain remains complicated, the odds of it expanding for the first time in 40 years are looking pretty good—and for fans of freely available information, that might be something to cheer for.

(Peterfactors/iStock/Getty Images Plus)

Ernie Smith

By Ernie Smith

Ernie Smith is a former senior editor for Associations Now. MORE

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