Wikipedia:Wikipedia Signpost/2014-01-08/Public Domain Day

Why the year 2019 is so significant

The views expressed in this op-ed are those of the author only; responses and critical commentary are invited in the comments section. The Signpost welcomes proposals for op-eds at our opinion desk.

Public Domain Day—January 1, 2014—gives me an opportunity to reflect on this important asset, mandated by the Constitution of the United States.

Compared with the years before 1998, the public domain has had a relatively small amount of material added to it for a whole generation. Since then, we have been in a catch-up period. Until 1998, the expiration on copyright was the life of the author plus 50 years, and 75 years for a work of corporate authorship/ownership. But here's the complicated bit, so please bear with me: the US Copyright Term Extension Act of 1998 (CTEA) lengthened that period to the life of the author plus 70 years and for works of corporate authorship to 95 years after publication or 120 years after creation, whichever endpoint is reached earlier. Copyright protection for works published before January 1, 1978 was increased by 20 years to a total of 95 years from their publication date. In practical terms, this means that works published in 1923 should have entered the public domain in 1999. Because of the CTEA, works published in 1923 have to wait until 2019 to enter the public domain. So far, that amounts to 15 years of withholding published works from entering the public domain (with five more years to wait).

There's been a small consolation: unpublished work by authors who died 70 years ago has been entering the public domain. On January 1, 2014, unpublished works (i.e. works never copyrighted) created by people such as composer Sergei Rachmaninoff, director Max Reinhardt, author Kermit Roosevelt, painter Chaim Soutine, philosopher Simone Weil, inventor Nikola Tesla, and actor Conrad Veidt entered the public domain.^[1]

Part of the issue with the CTEA was that Congress had been heavily lobbied by the entertainment industry and others to pass the act, since those industries would be the beneficiaries. But what about the public? On that score, remarkably few individuals testified against extending copyright. Congress practically ignored entreaties that the extension of copyright might cause issues.

Likelihood of further lobbying to restrict PD

As we patiently wait for 2019, there is a fear that Congress will again be influenced by the entertainment and other industries to again extend the length of copyright. It is unfortunate that while Congress can welcome the entreaties of the heavily financed industry leaders in favor of copyright extension, there are no concomitantly powerful organizations representing the Citizens of the United States arguing against extension and support for the public domain.

It took some by surprise that Maria Pallante, the Register of Copyrights, has called on Congress to examine many aspects of copyright for the 21st century due to the vast changes brought about by the Internet and the variety of of electronic communication. Among her points is re-examining term length for copyright, to recognize that copyright is not a one way highway for rights holders, but should be a balance achieved between copyright holders and the public.^[2]

On the surface it may seem as if the public may not be able to do anything. Such a defeatist view sees us at the mercy of the U.S. Congress, lacking the means to mount as effective a response that would be comparable to what the entertainment industry could muster.

But we are not helpless. Each Public Domain Day welcomes many unpublished works that can now be used freely without permission or payment. One form of benefit is that the public is allowed to enjoy these works, But perhaps more importantly, these works can now serve as the basis for the creation of new works. That is the other half of what the US copyright law is about. The annual replenishment of newly free work has been one of the economy’s engines since the 19th century, and has been hampered since the passage of the CTEA.

In this regard, the efforts of Wikimedians all over the world can not be underestimated: increasingly, I see newspapers and journals using media from Commons instead of contracting with for-profit media libraries. At nearly 20 million items and always increasing, Wikimedia Commons provides a counterweight to licensed use of media, giving the world options that were not previously available through such a widespread effort.

Citizens should not be shy in communicating the benefits they derive from public domain works. Creative artists, scholars and numerous other kinds of people and professions depend on freely available work. You are encouraged to strengthen free culture by participating and getting others to participate in photograph events and other media/content creation contests such as edit-a-thons and especially the annual Wiki Loves Monuments competition.

We should make every effort to celebrate and publicize public domain day, to educate the general public and raise the awareness of copyright and public domain, and the balance that needs to be struck between the copyright holders and the public.

May we all look forward and work to ensure that on January 1, 2019, works published in 1923 finally are allowed to enter the public domain, and that in successive years we will welcome published works whose nearly century-old protection comes to its legal conclusion.

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Thanks, Kosboot. The length of copyright terms goes well beyond any justifiable range that would protect creators and their direct heirs (or, in the case or companies, their investors). It is now protecting the monopoly of big media companies for an unreasonable length of time and, as you note, preventing new creativity. It would be nice if Congress would stand up to Disney and the other big media companies that have lobbied so hard to extend copyright term limits. -- Ssilvers (talk) 10:15, 11 January 2014 (UTC)[reply]

Yes I'll echo those thanks. It's nice to see this spelled out. The copyright problems for modern works are complex and there have been many confused conversations on Wikimedia Commons regarding the 70-95 year gap between US law and the rest of the world, but when it comes to older works it just seems silly. The English Wikipedia has the "fair use" policy which allows hosting content not allowed in other jurisdictions, but this only helps countries that have a large English speaking population. So for example, an image of an 1637 book cannot be transferred to Commons, though its article on the English Wikipedia can include a picture:

• 
  Version suitable for other Wikipedias, because it was published in 1549 before being copyrighted
• 
  Version suitable under "fair use" on English Wikipedia

In other Wikipedia languages, only the left picture can be used. Jane (talk) 11:46, 11 January 2014 (UTC)[reply]

Commons is hosted in the USA. Why must it follow copyright laws of any other jurisdiction? We do not follow the more liberal copyright laws of Canada so why do we follow the more restrictive ones of Europe? Doc James (talk · contribs · email) (if I write on your page reply on mine) 15:31, 11 January 2014 (UTC)[reply]

The allowability of the pictures of the 1637 book depends on local laws. In some jurisdictions, a direct copy with no creativity whatsoever in the copying process does not create copyright on the resulting image (Finland); in some jurisdictions, it does (France); in some again, it is left undetermined (Estonia). But if we're talking about the problems U.S. laws cause to the functioning of Commons, we might actually hold a pure hypothetical thought what might the situation look like if it was hosted in some jurisdiction that would be more free-minded towards copyright - or, indeed, outside any jurisdiction at all, like out on the ocean or on a satellite. Would it be more or less beneficial? It's an interesting question. You know, the servers aren't exactly immovable. --Ehitaja (talk) 16:33, 11 January 2014 (UTC)[reply]

In this regard, I think IMSLP has worked out things to the best advantage: They have multiple servers in different countries allowing them to host files that would be problematic for some countries. For example, I just uploaded works that were published before 1923 -- they're clearly PD in the US, but since the composer was born in Russia and died in 1966, he is not PD anywhere else in the world. Yet they still accept the works and allow downloading, presuming "good faith" for those downloading. -- kosboot (talk) 00:30, 12 January 2014 (UTC)[reply]

This isn't really a good example because that's not a copyright or fair use issue. The 1637 book of common prayer is under copyright in the UK but it is in the public domain in the United States. It's just Commons' policy that prevents it hosting the image, as that project chooses to have restrictions above the minimum legal requirement. Every Wikipedia could legally host the picture locally as well, because they are hosted in the US by a US organisation on a US domain name regardless of language, unless their specific project's policy prevents them. - AdamBMorgan (talk) 01:11, 12 January 2014 (UTC)[reply]

• I am not sure how to feel about current United States copyright practices, but I am comforted to think that starting in 2019 and for every year after there will be material queued to enter public domain and be shared. Thanks so much for this article. Blue Rasberry (talk) 17:36, 11 January 2014 (UTC)[reply]

Any further term extensions will not be a walkover for the "content" industries (RIAA, MPAA etc.) as the Sonny Bono / "Mickey Mouse" act was in 1998 -- the general U.S. public is now much more aware of how such things impact them personally... AnonMoos (talk) 01:19, 12 January 2014 (UTC)[reply]

Regarding the Book of Common Prayer images above, it's worth noting that the publishing restriction comes from the law of the United Kingdom, not the law of the United States. That's not to defend U.S. law - it clearly is designed to bolster company profits, not to encourage creative artists or to benefit the general public - but it is worth noting that the law is, in some cases, even worse elsewhere in the world. -- John Broughton (♫♫) 02:06, 12 January 2014 (UTC)[reply]

For example, many countries don't have the same concept of "fair use" that Wikipedia relies on. Additionally, new servers probably wouldn't solve the problem anyway. Wikimedia is still a US-based US-registered organisation and must follow US laws. The United States also pobably considers the .org domain to be in US cyberspace and subject to US law regardless of the physical location of the server; it does so with .com. (Public Interest Registry, who handle .org, are based in Virginia, just a few miles from Wikimedia's servers.) It would be very difficult to play games with copyright law like this, especially while being the fifth biggest website on the planet with all the attention that implies. - AdamBMorgan (talk) 12:45, 13 January 2014 (UTC)[reply]