At The Economist, Glenn Fleishman laments the freezing of the public domain in America under relentless entertainment-industry lobbying, even as Europeans enjoy an annual movement of cultural history to it: "While much of the rest of the world may take cheer from mass migration of material to the public domain each year, America has not seen one since the 1970s, nor will it until 2019."

  • http://twitter.com/sqlrob Rob

    “ America has not seen one since the 1970s, nor will it until 2019.”

    Optimist. I don’t think anything will ever go in again.

    • http://www.facebook.com/people/Robert-Drop/100000929402049 Robert Drop

      Yeah, given that Disney has been a driving force in changing copyright law to keep Mickey under wraps, what’s going to stop them from doing more of the same in the future?  That leaves us with the absurdity of nothing ever going into the public domain.  It’s perverse.

    • http://blog.glennf.com/ Glenn Fleishman

      I would have believed that firmly until the successes in the last two years in turning back legislation like SOPA and PIPA. Contrary evidence, of course, is the Digital Economy Act in the UK coupled with the extension of audio rights protection there recently.

      Unlike ACTA and other efforts that have taken place behind closed doors (but which continually have been exposed to light), any copyright extension would take place under the same conditions as SOPA/PIPA.

    • MythicalMe

       One has to wonder if copyright, in it’s current form isn’t already dead. Copyright owners keep lobbying Congress for more laws, but the public keeps ignoring the laws.

      While it might be wrong, I personally download anything from my youth because a lot of material isn’t available for sale anymore.

      • zotlerg

        “While it might be wrong, I personally download anything from my youth because a lot of material isn’t available for sale anymore.”

        The funniest excuse for taking stuff and not paying for it I’ve heard in ages.

        • Hanglyman

          If it isn’t available for sale, how exactly would you propose MythicalMe should pay for it?

          Edit: Okay, I guess their comment could be taken to say that because some stuff isn’t available for sale, MythicalMe downloads anything from that time period indiscriminately, but that’s not how I read it.

          • zotlerg

            I’d like an example of what they couldn’t get hold of.

          • howaboutthisdangit

            Why?  Are you hoping to prove someone wrong?

          • Nonentity

             What, it’s so difficult to believe that there is entertainment from people’s youth that isn’t available for sale any more?  Are you so young that you can honestly say everything you were entertained with as a kid is available to (legally) buy?  Or are you just wanting to critique some people’s childhood tastes in entertainment?

            If your “youth” goes back to the 80s or earlier, there are lots of TV shows that aren’t available for purchase.  A lot of it wasn’t exactly the greatest film of all time, and if some of the lesser-known ones went on sale at all it was on VHS tapes that have long since degraded.

          • zotlerg

            If it’s on a torrent somewhere then it’s going to be available to buy somewhere else, Ebay may even have the original vinyl/disc for the nostalgic types. ‘Nonentity’ is using the old TV thing as there are no other examples that couldn’t be purchased. Although why and where is another matter.

          • Nonentity

            @boingboing-029a277f755dabed1cbe42b6dd33aff0:disqus  “‘Nonentity’ is using the old TV thing as there are no other examples that couldn’t be purchased.”

            Waaaaitaminnit… You just finished saying that “If it’s on a torrent somewhere then it’s going to be available to buy somewhere else.”  Saying that there are “no other examples” than what I mentioned invalidates that statement right there.

            And if TV shows from the 80s are an example, even more common is audio entertainment that was sold on various forms of tape which likely failed even faster than VHS recordings.

          • Nonentity

            @boingboing-029a277f755dabed1cbe42b6dd33aff0:disqus  Why do you keep asking for specific examples, when you clearly don’t think that being impossible to find them for sale changes anything?  You already accepted “the old TV thing” as an example and then ignored it.  It’s pointless to argue about whether specific copyrighted items are impossible to buy (or very nearly so) when you’ll just classify copying those items as “taking stuff for free” and say there’s no justification anyways.

            And boy does it ever make me feel old that 80s TV shows are considered “the old TV thing” in this conversation. I get the feeling you’re not old enough to realize how much content has been completely lost to the ravages of time due to people who thought like you. Even the original creators can lose things (or destroy them in mistaken belief that the originals are worthless), and many can never be recreated.

          • MythicalMe

             Disney’s “Song of the South”, for one. Because of the content, and I think they are wrong, Disney will never release it in North America. The copy that I have was from a UK release of a PAL formatted tape.

            There is a lot of material that either isn’t commercially viable or won’t be released again because of changing social conditions.

          • ocatagon

            Actually Criterion is going to be releasing Song of the South this year.

            But as someone that likes 70s European rock, there are plenty of albums I can’t buy in the U.S., and foreign movies too.

          • Antinous / Moderator

            If you go to Wikipedia, you can find entries like “1937 in Literature” or “1951 in Film”.  Extrapolate.

        • wysinwyg

          Don’t see what’s so funny about it.  If something isn’t available commercially should it really drop off the face of the earth?  Isn’t it better that it’s at least preserved in a digital format and enjoyed by someone somewhere?

          Who does it hurt when I download an orphan work?  Honest question here.  Who misses out?  Who am I “stealing” from? Where is the harm?

          Copyright zealots never seem to be able to actually lay down the premises of their arguments.  You guys always seem to jump right to: “Squaaawk!  You’re a thief!  Squaawk!” without bothering to explain how or on the basis of what ethical theory you arrived at that conclusion.  It’s hard for me to take your position seriously when you don’t seem to take it very seriously yourself.

          • zotlerg

            People can’t justify any reason why they deserve to have stuff on the internet. Why do you deserve it? It makes no sense at all. Are you really that spoiled in having everything for free? 

          • Joe Buck

             So set up a mechanism that allows people to voluntarily pay the copyright owner for unavailable material, or perhaps create a funding mechanism for such payments.  Your alternative seems to be to say that if the copyright owner is no longer interested in selling some decades-old copyrighted work, it should simply disappear, and should not be available at any price. That kind of thinking could cause us to lose much of our cultural heritage if we keep increasing copyright terms every time Mickey Mouse is about to enter the public domain, because so much work from 50+ years ago is orphaned.

          • Nonentity

            If we toss out your strawman argument of “everything for free” (which absolutely no one in this thread has argued for), we’re left with something that is pretty close to another question: Why should the public domain exist at all, and why are there limits on the length of copyrights?  After all, why does the public “deserve” to eventually get those works “for free”?

            Creativity doesn’t happen in a vacuum, and preventing the public from ever having free access tends benefit neither the creator nor the society as a whole.

          • wysinwyg

             I can’t help but notice that you still aren’t making an argument.  Again, I can’t take your position seriously if you don’t take it seriously yourself.  Especially when you go out of your way to call me a thief on the basis of no evidence whatsoever.

            Could you at least try to address some of my questions or, you know, make an actual argument that supports your position?  You haven’t done anything but accuse people you don’t know of perfidy.  You haven’t explained your position at all.

            All in all, you seem like kind of a troll.

          • zotlerg

            I sell my own creative software on the internet and it made me quite sick when I saw it hacked and stolen openly. If you’re on the other side of the copyright wall, being the owner, then it feels very different. And you can’t know how it feels without it actually happening to you, especially with months or years of man-hours of work. I find people openly passing links to my stuff all over the place and I don’t buy into the ‘well it’s free advertising’ argument, it may have been a couple of years ago, but not now. 

            I’m always amazed how openly people discuss their piracy on the internet now. It’s got so ingrained that they treat it as the norm, without even thinking about the creative individuals that are trying to keep a roof over their heads. There are great long threads of  ”well they’re big corporate’s aren’t they, they make enough” and similar fatuous arguments.
            I believe piracy has a general negative effect on behaviour, and it’s getting worse for my industry. But that’s just my point of view of course.

          • Nonentity

            @boingboing-029a277f755dabed1cbe42b6dd33aff0:disqus  “I sell my own creative software on the internet [...] I saw it hacked and stolen openly”

            That’s horrible and all, but it really doesn’t seem to have much relation to the conversation that you’re inserting yourself into.  You’re fully within your rights to feel angry at people pirating rather than giving you recompense for your work and, importantly, you don’t seem to have abandoned your work.

            Would you still feel as angry about it if you were refusing to accept money for that software? Or if you had completely lost your work and were unable to accept money for it?  Or if you had died and your offspring decided not to do anything with it?

            Who would be more at fault for your anger if people who want to pay you for your work were resorting to piracy because any other option was closed?

          • wysinwyg

            Even if it’s just a few decades old, doesn’t mean everybody’s automatically entitled to it. It’s up to the creator to do what they want with their works after all those years, not yours.

            Zotlerg, that’s still not an argument, it’s a statement of your personal opinion — and it still doesn’t address my questions.  Why should I take your opinion seriously?  Why should I presume the creator of a work should have complete control of it forever and always?  Do you make any allowances for fair use? 

            I asked about orphan works, works which have apparently been abandoned by their creators.  In what way are the wishes of the creators of such works relevant after they’ve been orphaned?  Who does it hurt to put up a torrent of an out-of-print book?

            For books which are out of print, do you think it’s better that such works disappear entirely from the face of the earth or that they’d be preserved and enjoyed in some form?  Since they’re out of print the creator is not making any money from them.  What, then, is wrong with preserving the text in digital form?

            If you think torrenting out of print books is wrong then do you think used book stores should be illegal?  I can buy out of print books at a used book store and not a penny goes to the creator of the work.  Is that morally wrong?  Why or why not?

            Finally, let’s suppose I hear someone whistling a tune. I’m not aware, but the person composed this tune themselves — on the spot, just thought of it and whistled it. Now suppose I unconsciously start whistling that same tune a few hours after hearing it. Have I violated that person’s copyright? Have I violated the wishes of the “creator”? If your argument is based on principle then whistling someone else’s song in public should be every bit as bad as torrenting a book (as should buying one at a used book store). If your argument is based on economic harm then you should be able to admit that torrenting out of print books harms no one and therefore should be legal. Which is it? Or is there a third way I have not considered?

            Please give me a reason to take your opinion seriously.

          • wysinwyg

            If you’re on the other side of the copyright wall, being the owner, then it feels very different.

            You shouldn’t presume to speak for everyone with copyrighted works — Neil Gaiman, for example, takes a very different position on this.  Nonetheless, I think you are perfectly justified in being angry at being stolen from.

            Now, you DO understand that even in real life there are people who go to stores and take stuff out without paying for it (called “thieves”) and then other people who don’t steal stuff, right?  The main problem I’ve had with your comments is that you seem to assume that anyone who doesn’t take a super hard line on intellectual property is a thief.  That is simply a ridiculous non-argument.

            I don’t torrent and I don’t steal software, but I still have concerned — I think legitimate ones — about intellectual property laws in this country.  In fact, I think these intellectual property laws are screwing you over as a software developer.  Copyrighting software doesn’t protect it at all and software patents create a whole lot of serious problems (as we’ve been seeing in the news).

            What I’d ask of you is to please consider the fact that people can have legitimate grievances with aspects of intellectual property law — such as the complete revocation of the idea of the public domain — without themselves being pirates or thieves.  That is, maybe you could consider the arguments without immediately jumping to the conclusion that the person making those arguments is a thief and accusing them of being one.

            There are always going to be cheaters, thieves, and various other villains.  Try not to hold everyone accountable for the actions of the few, huh?

            (You still haven’t addressed any of my questions, by the way.)

          • zotlerg

            Please stop turning things around. I was just talking about a specific thing about creative works a few decades old where all parties/owners are alive, and quite happy having the rights to their own creativity, even if it’s not in popular circulation. Wouldn’t you be glad you own the rights to your own hard work? 
            *edit* – posted same time.
            To answer you’re questions, just because you want it to be right doesn’t make it so. Neil Gaiman isn’t automatically correct because you agree with him, his views are about his own particular experience as an already established author, and it cannot be correlated to work directly onto everything else.
            I’m not the person against your overall opinion, and a lot of things should just have common sense applied.

          • Antinous / Moderator

            …a lot of things should just have common sense applied.

            “Common sense” is not a synonym for your opinion. Do you have any actual point to make, because so far you’re just having a fit.

          • zotlerg

            Charming, it’s like you’re not reading what I’m saying, oh well, enough already.

  • Remy Porter

    We won’t see one before 2019. I doubt we’ll see one after.

  • Sagodjur

    And IP maximalists wonder why people don’t respect copyright laws…

  • http://newnumber6.livejournal.com Peter

    “Saul was a turtle, a turtle who walked like a man, but that wasn’t unusual.  Lots of things walked like men these days, things that shouldn’t, like the dead. 

    That was why Saul carried a gun.  Because the dead moved slow, but turtles moved slower, and they didn’t much care what type of meat they ate.  Saul hadn’t seen many turtlemen about since the apocalypse, probably for just that reason, but he had to be out.  His best human friend had gone out for supplies two days ago, and wasn’t back yet.  Saul had to know, even if it meant his death. 

    He made it three feet out the door before he saw the first of the dead.  He froze… sometimes they just passed you by.  No, it was turning towards him.  He couldn’t run back, so he did the only thing he could do… rose his gun, and aimed for the head.

    As the zombie began gnawing at his tough flesh, he remembered two things… in addition to their slowness, turtlemen were known for two things… not being the brightest animals to be uplifted into sentience, and for not having thumbs that worked worth a damn under pressure.”

    I hereby bequeath this short story into the public domain in all of the world.  Now you have something.  You’re welcome, America. 

    • http://www.jjsaul.com Jim Saul

      Wait, what?

  • Donnie Hall

    So, how does this work when an American copyrighted work is sold in Europe, under a European copyright?  It should be free to be able to be put on the Internet for free once the European copyright is up.  Is that correct?

    • ldobe

      TRIPS requires copyright terms to extend no less than 50 years, unless based on the life of the author. It looks like TRIPS tries to make international copyright terms always last as long as the term for the country of origin.

      I’m not sure whether it’s possible for an American work to expire in the EU before it expires in the US. My guess would be no, but I don’t have any evidence right at the moment, so I could easily be wrong.

    • http://blog.glennf.com/ Glenn Fleishman

      Oh my god, you don’t even want to know. Or maybe you do. Peter Hirtle’s site on copyright at Cornell is a great place to start.

      It depends on all sorts of things. Was a work “published” in a country or brought into it or imported? I dunno. It’s really easy when there’s a publisher of record. But when Amazon.com sells you a copy in the UK of a book…

  • Aeon Chaosfire

    So there’s a little under 6 years to keep copyright from getting longer. The copyright cartels aren’t likely to find lengthening copyright  so easy this time around. And while on this topic it needs to be said that there needs to be copyright reduction.

    • Andrew Singleton

      Yea last guy in washington that suggested that got told to pack his shit and get the hell out.

      • http://blog.glennf.com/ Glenn Fleishman

        He was a Republican staffer who dared to produce a document that had true conservative thinking in it! How dare he.

  • heckblazer

    The linked article praises Europe’s “harmonised copyright laws”, but the current lack of American entries into the public domain comes directly out of harmonizing American copyright terms with the ones in Europe. When you go from a 46 year maximum term to a 70 minimum year term math dictates that you will have some dry years. Of course, making the new term retroactive and adding in an old term to boot for existing works at the time of the changeover makes the lacuna a helluva lot bigger than it should be.
    (FWIW I’d prefer the old American system; I blame this new stuff on Victor Hugo and the French :)
    ETA: I screwed up my numbers. The old US copyright term was 28 years with option to renew, so the maximum was actually 56 years.

    • Joe Buck

       Harmonizing always works in one direction: choose the maximum-length term.  Then convince at least one major country to adopt a longer term, and repeat the harmonization step.

      • heckblazer

        Yeah, convenient how that works out, isn’t it?  
        In the case of copyright though it really was a case of the US vs. Everyone Else, and the life + 50 years minimum term is what Victor Hugo advocated back in the original Berne Convention.  When you get down to it the American system and the one set up by Berne actually have different goals.  In the US copyright  is “To promote the Progress of Science and useful Arts” while the Berne Convention is to protect the rights of the creator.  Allowing the author plus his or her kids and grandkids to live off the work is part of those rights, hence the much longer term (the EU decided to extend it to life + 70 on the grounds that with modern life-spans two generations are longer).  

  • xzzy

    Not that I’ve ever done anything worthy of note, but everything I’ve ever put online has either been free to anyone that wants to use it, or at least under the most permissive CC license the website allows. 

    I know I’m not alone in doing this, doesn’t that count as “public domain?”

    I’m a US citizen too!

    • crnk

      I came here to make an observation of a similar caliber…I believe that a producer can assign copyright to the public domain.
      And also: much work that the US government does/commissions is assigned to the public domain by definition.  But…stating that would sort of invalidate a sensationalist headline for the writeup, so what motivation is there to include it?

      • wysinwyg

        But…stating that would sort of invalidate a sensationalist headline for the writeup, so what motivation is there to include it?

        Actually, I’d say that your argument — that a very few works are voluntarily or through policy added to the public domain — is rather pedantic since it doesn’t really account for what most people think of as a robust public domain.  I’d say the headline is reasonable and you guys are nitpicking.

        Just another POV.

      • http://blog.glennf.com/ Glenn Fleishman

        Yes, you can foreswear your rights, and Creative Commons has a document to help. (Most CC licenses give up a lot of rights, but not all of them.)

        US government rule is that, by statute, it establish no domestic copyright over work created by public employees and most contractors.

    • http://blog.glennf.com/ Glenn Fleishman

      We’re talking about material that was under copyright entering into the public domain, which is separate from foreswearing rights (as you have) or retaining minimal rights with non-restrictive CC licenses.