How to access the greatest hits in American culture through public domain

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Public domain offers unfettered access to centuries of books and other media

Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a Public Domain of freely available material than they do on the informational material that is covered by property rights. The Public Domain is not some gummy residue left behind when all the good stuff has been covered by property law. The Public Domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture.

Two hundred thirty years ago, the Founding Fathers had a lot on their plates. The task of molding a new nation was a monumental, tangled undertaking, encompassing everything from settling on a national currency and organizing the military to deciding how best to combat pirates.

In the midst of this legislative turmoil, however, they took the time to establish safeguards for the creative output they assumed America's citizens would produce in years to come.

When the U.S. Constitution was drafted in 1787, the first article included a provision for copyright. Following hot on the heels of language empowering Congress with the right to establish post offices and punish counterfeiters, the framers defined copyright protection as a way to "promote the progress of science and useful arts."

"The way we do that is by balancing granting exclusive rights to creators with placing limits on those rights to encourage the exchange of ideas," says Gretchen McCord, a Texas-based librarian and lawyer specializing in copyright issues in libraries.

The yin to copyright's yang is public domain, a kind of village green where creative works retire once the term of their copyright protection expires. Anyone can access public domain material for free, whether for personal pleasure, to restore or otherwise preserve it, as inspiration for creating derivative work or to use in a commercial, which is how many familiar songs live on as background music in advertisements and films.

Despite its potential usefulness, public domain is often misunderstood, says Theresa Liedtka, dean of the library at the University of Tennessee at Chattanooga.

"In my experience, general knowledge of the public domain is limited," she says. "Copyright law is not a tangible, so it is harder to understand than say ownership of a piece of property."

But unfettered access to this artistic backlog, public domain proponents argue, is vital to inspiring new generations of creators. The public domain is why community orchestras are still performing symphonies by Mozart and Beethoven; why theater groups continue to build on the dramatic legacy of William Shakespeare; why legions of authors have been able to pen new stories based on characters dreamed up by Edgar Allen Poe, Charles Dickens and Sir Arthur Conan Doyle.

Freedom of access to public domain material, McCord says, is as crucial to building up and preserving America's cultural heritage as the economic safeguards provided by copyright.

"We rely on the public domain to ensure a democratic, educated society," she says. "If literally 'everything' was protected by copyright, almost anything any one of us wants to do with a piece of information, regardless of medium or size, would require prior authorization of the copyright owner."

Centuries of confusion

Practically since its inception, the laws governing copyright and the public domain have been in a constant state of flux.

Three years after the Constitution was signed, the Copyright Act of 1790 set a maximum copyright term of 28 years - 14 upon registration with the U.S. Copyright Office and a single 14-year renewal. Only "maps, charts and books" were protected and, once their term expired, often within the lifetime of their creator, they became the property of the public.

Today, however, things are significantly more complicated.

A series of successive acts have continually extended the length of copyrights in the U.S., often by retroactively applying it to unprotected works, which delays additions to the public domain. Whereas the 1790 act was reprinted, in its entirety and on a single page, in newspapers around the country, the current Copyright Law of the United States sprawls for more than 365 pages and offers protection, at a minimum, that extends 70 years after a creator's death.

As a result of its constant evolution and eccentricities, even experts have a hard time describing what public domain actually is.

"The borders of the public domain are not easy to define, in part because the public domain consists of different categories of material," McCord says. "Even for the category of copyright-expired works, it's not easy because both the requirements to obtain copyright protection and the length of that protection have changed many times over the course of U.S. history."

In fact, the most recent copyright legislation has ceased almost all activity on the village green of the public domain.

According to Duke University's Center for the Study of the Public Domain, under copyright laws that were in effect until 1978, the 2016 additions to the public domain could have included films such as "Ben-Hur" and Alfred Hitchcock's "North By Northwest," books such as "Starship Troopers" by Robert A. Heinlein and a slew of albums, including Miles Davis' seminal "Kind of Blue."

The public domain is not an exclusively American concept, and other countries have their own laws governing copyright. The majority of nations - more than 165 - have copyright laws in accordance with the international accord reached at the Berne Convention in Switzerland in 1886, which sets forth a recommended term of protection for 50 years after the creator's death. Some nations, such as Mexico and Jamaica, offer more stringent protections, while terms in several African nations are shorter.

Most works created outside the U.S., such as records created by British bands like The Beatles or Rolling Stones, are treated the same as American works under U.S. copyright law and may remain copyrighted in the U.S. even if they have entered the public domain in another country.

The Sonny Bono Copyright Term Extension Act - yes, named after the Sonny & Cher singer, who was a congressman and a sponsor of the bill - is a 1998 revision to the law that retroactively extended the copyright of all works created between 1923 and 1977. This extension has dramatically delayed the addition of new works to the public domain.

Thanks to the 1998 revision, works created in that 54-year timeframe will remain protected for 95 years from the date they were published or registered for copyright. The earliest any material created in that time span will become public domain in America is 2019, unless an author willfully waives their copyright protection.

This stagnation of the public domain, the Duke institute's staff argues in a Jan. 1, 2016 post, effectively has barred the public domain and is robbing America's cultural coffers.

"This [restriction] is happening at a time when there is a consensus among academics, economists, and policymakers that this [copyright] term is a 'big mistake,'" the post reads. "Its benefits are minuscule [and] at the same time, it causes enormous harm, locking away millions of older works that are no longer generating any revenue for the copyright holders.

"These laws impose great (and in many cases unnecessary) costs on creativity, on libraries and archives, on education and on scholarship. More broadly, they impose costs on our collective culture."

Contact Casey Phillips at cphillips@timesfreepress.com or 423-757-6205. Follow him on Twitter at @PhillipsCTFP.