After a two-decade legal hibernation, the public domain is flush with content from 1923. What caused The public domain to pull this Rip Van Winkle feat? Surely, it wasn’t the ghosts of Henry Hudson’s crew? The culprit was the United State’s legislative branch, rubber stamping the Copyright Term Extension Act (CTEA)—later named posthumously in honor of Sony Bono—and being signed into law by President Clinton in 1998.

CTEA gave existing copyrighted works a twenty-year reprieve. CTEA grants copyright terms: for the authors, life plus 70 years; for corporate works, 95 years from publication or 120 years from creation, whichever expires first.

In practical terms, works copyrighted in 1923 are now in the public domain, meaning anyone can reproduce and use them without having to pay royalties or gain permission from copyright holders. Some have gone as far as dubbing this past January 1st as “Public Domain Day” Duke Law’s Center for the Study of the Public Domain each year releases a list of works that become available.

What exactly is the public domain? An astute question. The public domain sounds like a catch-all term. Duke’s Law’s Center for the Study of the Public Domain offers the following definition:

“The public domain is a realm of material – ideas, images, sounds, discoveries, facts texts—that is unprotected by intellectual property rights and free for all to use or build upon. It includes our collective and scientific heritage and the raw materials for future expression research, democratic dialogue and education.”

Disney’s Impact?

When discussing the Copyright Term Extension Act, inevitably Disney is brought into the discussion derisively. It’s widely held that the CTEA was nothing more than a Mickey Mouse protection act.

Michael Rosen of The American Enterprise Institute recently explained in a post about the pending ‘Mickey-pocalypse’, “because Congress has repeatedly extended the duration of copyright protection for individuals and companies, largely at the behest of the Walt Disney Company, two decades had passed since the last creative works, which had been copyrighted in 1922, became freely available to the public.”

This raises the questions, is Disney to blame for the lack of works entering the public domain? I was a believer, as an undergraduate, I wrote a term paper for a Communications Law class lambasting Disney and Sonny Bono for the cultural damage they’ve caused.

Now, why are we so quick to blame the mouse? Outside of Mickey’s iconic status in this country, the notion is based on the fact that the last two copyright extensions occurred shortly before Mickey Mouse was set to enter the public domain. In 1976—a handful of years before Steamboat Willie was set to enter the public domain—Congress extended copyright protection from a maximum of 56 years to life plus 50 years. The extension bought Mickey a nineteen-year reprieve until 2003. Jump to 1998 and Steamboat Willie is a scant five years from expiration and lo and behold Congress passes the Copyright Term Extension Act, which again tacks 20 years onto the total (70 years after the author’s death).

Reflecting on it almost a decade later, I no longer specifically blame Disney, although I’m still galled by the hypocrisy. Disney built his fortune on raiding the public domain for stories—as is its purpose—then to turn around and try to destroy it for selfish reasons. Take Steamboat Willie—the object of our discussion—it is a blatant rip-off of Buster Keaton’s Steamboat Bill Jr.

Disney—because of how recognizable it is—has become the face of the debate. Blaming Disney is a simplification that cheapens the discourse.

Stephen Carlisle of Nova Southeastern University details the passage of CTEA. He explained that Disney hardly bought the legislation, “The largest amount that was given by the Disney Pac to any one Representative was the sum of $5,000.00. This amount was given to Representative Cole, who sponsored the bill and Howard Berman, a co-sponsor of the bill and senior member of the House Judiciary Committee.”

Carlisle points out that the bill had universal appeal, basically no opposition in Congress. It passed the House of Representatives on a “voice vote,” and was passed by the Senate by “unanimous consent.”

Other factors that cast doubt on the Disney-is-to-blame line of thinking. The copyright term had already been extended twice before Mickey had been created. In 1976, Mickey was eight years away from expiration, not that imminent—also extending the copyright term to life plus 50 years was necessary for the U.S. to join Berne Treaty—a lot more capital at stake joining an international convention for projecting literary and artistic works.

Carlisle also doubts if we are heading for fresh copyright extension. He points out there was an opportunity to extend the term of copyrights when the Trans-Pacific Partnership was being worked on, and it wasn’t a point of discussion.

Why Do You Care About this Copyright Business?

Let me start by stating that I believe everyone should be able to benefit from his or her hard work and so too should his or her family. It isn’t exactly the duration of copyrights either, although that comes into play. My ax to grind is the issue of orphan works—this is where I feel our culture lost invaluable resources forever. Orphan works are works that the copyright holder cannot be found and have no commercial value.

According to Duke Law’s Center for the Study of the Public Domain, “They [orphan works] probably comprise the majority of the record of 20th century culture (one study indicates that only 2 percent of works between 55 and 75 years old continue to retain commercial value).”

As a film studies minor, I was appalled to find out that most old films—mainly silent films—were disintegrating, but it is just one of many unnecessary costs.

“The costs here are huge: needlessly disintegrating films just when technology would allow for their preservation, prohibitive costs for libraries, incomplete and spotted histories, thwarted scholarship, digital libraries put on hold, delays to publication. In the cases where the work is truly an orphan work, those costs are tragic because they are completely unnecessary: no one is benefiting from the continued copyright protection over these works, while the entire public loses the ability to adapt, transform, preserve, digitize, republish and otherwise make new and valuable uses of them,” (Duke Law’s Center for the Study of the Public Domain, 2019).

It’s not Disney or Mickey Mouse—it’s the exorbitant cultural price paid by society that has me upset. Now, Steamboat Willie is set to expire on January 1, 2024. Will Congress act again? If history is any indication, we may be heading to a renewed intellectual property debate and legislation. Hopefully, it will address orphan works before it’s too late.

References

Carlisle, S. (2015, October 30). The shocking truth behind the passage of the sonny bono copyright extension! (is that it’s not really shocking). Retrieved from http://copyright.nova.edu/sonny-bono-copyright-extension/

Davis, D. (2018, December 31). Are rightsholders ready for public domain day? Techcrunch Retrieved from https://techcrunch.com/2018/12/31/are-rightsholders-ready-for-public-domain-day/?ncid=txtlnkusaolp00000616

Duke Law School’s Center for the Study of the Public Domain. (2019). Public domain day 2019. Retrieved from https://law.duke.edu/cspd/publicdomainday/2019/

Duke Law School’s Center for the Study of the Public Domain. (2019). Public domain day 2019 — frequently asked questions. Retrieved from https://law.duke.edu/cspd/publicdomainday/2019/faqs/#q01

Rosen, M. (2019, January 31). As copyrighted works (re)enter the public domain, is the end of mickey, nigh? Aeideas Retrieved from https://www.aei.org/publication/as-copyrighted-works-reenter-the-public-domain-is-the-end-of-mickey-nigh/