Public Domain Day 2014: bad times ahead, urgent action needed

It's Public Domain day again -- the day when music, books and movies enter the public domain in countries where copyright lasts for the life of the author plus 50 years (hint: not the USA).

But as John Mark Ockerbloom points out, the list of life+50 countries keeps getting shorter, as more and more countries are arm-twisted into extending their copyright terms by the US Trade Representative. And increasingly, countries are passing regressive copyright laws that take works out of the public domain and put them back into copyright -- an insane policy that ends up criminalizing new art that incorporates the old, and that provides no new incentive to create (give Elvis or the Beatles 50 more years of copyright if you like, they're still not going to record any more music).

It's not all bad news: between the Hathi Trust lawsuit (which held it legal to scan old, in-copyright books under some circumstances) and the growth of Creative Commons licenses.

There's urgent work to be done. We need to fight copyright term extension, to expand fair use and fair dealing, increase access to orphan works, and discredit and destroy the new practice of making global copyright law through secretive treaty negotiations like the Trans-Pacific Partnership. Groups like the Electronic Frontier Foundation, Public Knowledge, and the Open Knowledge Foundation are all working to bring copyright into line with the modern world, and to stop its from being used for censorship and surveillance.

The next major plateau for international copyright terms, life+100 years, is now in sight.  The leaked TPP draft from August also includes a proposal from Mexico to add yet another 30 years onto copyright terms, to life+100 years, which that country adopted not many years ago.  It doesn’t have much chance of passage in the TPP negotiations, where to my knowledge only Mexico has favored the measure.   But it makes “life+70″ seem reasonable in comparison, and sets a precedent for future, smaller-scale trade deals that could eventually establish longer terms.  It’s worth remembering, for instance, that Europe’s “life+70″ terms started out in only a couple of countries, spread to the rest of Europe in European Union trade deals, and then to the US and much of the rest of the world.  Likewise, Mexico’s “life+100″ proposal might be more influential in smaller-scale Latin American trade deals, and once established there, spread to the US and other countries.  With 5 years to go before US copyrights are scheduled to expire again in significant numbers, there’s time for copyright maximalists to get momentum going for more international “harmonization”.

What’s in the public domain now isn’t guaranteed to stay there.  That’s been the case for a while in Europe, where the public domain is only now getting back to where it was 20 years ago.  (The European Union’s 1990s extension directive rolled back the public domain in many European countries, so in places like the United Kingdom, where the new terms went into effect in 1996, the public domain is only now getting to where it was in 1994.)  But now in the US as well, where “what enters the public domain stays in the public domain” has been a long-standing custom, the Supreme Court has ruled that Congress can in fact remove works from the public domain in certain circumstances.   The circumstances at issue in the case they ruled on?  An international trade agreement– which as we’ve seen above is now the prevailing way of getting copyrights extended in the first place.   Even an agreement that just establishes life+70 years as a universal requirement, but doesn’t include the usual grandfathered exception for older works, could put the public domain status of works going back as far the 1870s into question, as we’ve seen with HathiTrust international copyright determinations.

Public Domain Day 2014: The fight for the public domain is on now (Thanks, John Mark!)