Some people may not know it, but there’s a concept in this country called public domain. After a set period of time, copyright protections on a work (novel, recording, play, movie, video game, what-have-you) are supposed to be phased out. After that, the work becomes the joint property of everyone, and can be published freely by anyone. Even more important, authors then can reference those works in their own without fear of running into a pack of lawyers.
However, public domain is quickly becoming as fictional as Sherlock Holmes. Most of the great detective’s adventures have fallen into public domain, as have the works of Shakespeare and Homer. However, the last set of stories (The Casebook of Sherlock Holmes) was caught in a blanket renewal of all copyrights under the Sonny Bono Copyright Term Extension Act in 1998.
Thousands of works published in 1923 or after, including great movies like “Casablanca” and numerous scientific works, were unceremoniously yanked from the public domain. This is a
disaster in many ways for culture. Think if Vergil had to hunt down the copyright holders for Homer’s Iliad and Odyssey (from which Vergil borrowed in his Aeneid)? For that matter, What would have happened with Nicholas Meyer’s famed novel “The Seven-Percent Solution,” which was a Holmes pastiche? What of a scientific or historical work that could be published on the Internet for all to see?
I’m not against the idea of a copyright that is meant to recompense, for a limited time, the authors of a work, but it rankles me that a few companies are now lobbying for permanent copyright. The problem with the copyright setup in this nation is that it has become driven by the entertainment industry.
In the 19th century and before, before the big media conglomerates came along, it was pretty much assured that a work would go into the public domain in the author’s lifetime (unless, like Edgar Allan Poe or Emily Dickinson, the author died young). In the original copyright acts, the maximum length of a copyright was set at 28 years. After that, everyone could publish it. That all changed with the advent of the
major movie studios and the rise of phonograph recordings.
Not too long ago, both industries realized that — hey, these copyrights are going to run out someday — their golden goose was about to expire of old age.
So, what to do? Congress has the power, under the Constitution, to set copyright limits. So, you lobby, lobby, lobby: Get friendly with a few legislators, and grease a few palms with — ahem — “campaign contributions.” This they did, and 11 times since 1962, they were able to get the copyrights extended. Finally, in 1976, we joined the Berne Convention which set copyright at 50 years after the death of the author, or 75 years for works for hire.
Then, they got one of their own elected. Sonny Bono, of Sonny and Cher “fame,” was a California congressman. Then, he hit a tree while skiing. His wife, Mary, and Sen. Orrin Hatch felt that the best tribute to Sonny would be to extend all copyrights
another 20 years, and set the maximum for any work at 95 years.
The best that public-domain enthusiasts could ask for would be to strip the copyright extensions back to the life of the author plus 50 years (the Berne stipulation), as well as abolish the automatic renewal. This could happen, with any luck. Eldred v. Ashcroft may challenge the constitutionality of the Bono Act on the grounds that they cannot retroactively yank works in, or
almost in, the public domain back into copyright protection. What is so amazing is that the court even heard the case at all. They have not been interested in the past in hearing copyright cases.
Of the intellectual property controversies arising now, copyrights will have the largest impact on our civilization.
Contact the editorial editor at [email protected]. His views do not necessarily represent those of the Emerald.