US Copyright Term Extensions Have Stopped, But the Public Domain Still Faces Threats

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Every January 1st, we celebrate the creative works that become free to use and adapt as their copyright expires. This year, that includes the iconic sci-fi film “Metropolis,” the first Best Picture Oscar winner “Wings,” the classic children’s book “Goodnight Moon,” and the last of the Sherlock Holmes stories by Arthur Conan Doyle. Along with these famous works, many thousands of cultural artifacts from 1927 and earlier can now be used by artists, educators, and businesses without fear of massive copyright liability—if any copies can be found.

For most of the 21st Century, these works have been under legal lock and key. Following the 20-year Sonny Bono Copyright Term Extension Act that Congress passed in 1998, no copyright terms expired in the U.S. until 2019. The cost is staggering – researchers estimate that 75% of the films of the silent era have been lost.

The 1998 extension capped several decades of copyright term expansions that ultimately put U.S. copyrights among the longest in the world. Even though the next 20 years will see many more significant works enter the public domain, including Disney’s famous early films like Snow White, Bambi, and Fantasia, the major media and entertainment companies haven’t called for another term extension—and none seems likely.

Why did U.S. copyright terms stop their relentless growth? Because people from all walks of life stood up and said “no more!” The Internet has made everyone a creator and a user of creative work, whether photos, video, music, or prose. Internet users recognized that ever-longer copyright terms impoverish the public conversation and benefit almost no one. Over the past decade, you’ve made your voices heard and made further term extensions toxic for U.S. lawmakers.

The public domain still faces threats. Canada is poised to enact its own 20-year term extension. We can also expect rightsholders with lots of legal firepower, like Disney, to try and stretch trademark law into what the Supreme Court once called “a species of mutant copyright,” to keep others from building on old characters, books, and films.

Copyright terms remain far too long. It will be nearly two decades before a filmmaker making a documentary about the World War II era can use music recordings from the period without facing what the Recording Industry Association of America and other music industry groups have called a “staggeringly complex” licensing process—or else risking massive and unpredictable statutory damages in a copyright suit.

Rather than preserving culture, long and complicated copyright terms keep us from our history. And that cannot be what copyright was meant to do.