They stole something from you. For decades, they stole it. That thing they stole? Your entire culture. For all of human history, works created in living memory entered the public domain every year. 40 years ago, that stopped.
First in 1976, and then again in 1998, Congress retroactively extended copyright’s duration by 20 years, for all works, including works whose authors were unknown and long dead, whose proper successors could not be located. Many of these authors were permanently erased from history as every known copy of their works disappeared before they could be brought back into our culture through reproduction, adaptation and re-use (copyright is “strict liability,” meaning that even if you pay to clear the rights to a work from someone who has good reason to believe they control those rights, if they’re wrong, you are on the hook as an infringer, and the statutory damages run to six figures).
Works that are still in our cultural currents 50 or 70 or 90 years after their creation are an infinitesimal fraction of all the works we create as a species. But these works are – by definition – extraordinarily important to our culture. The creators who made these works were able to plunder a rich public domain of still-current works as inputs to their own enduring creations. The slow-motion arson attack on the public domain meant that two generations of creators were denied the public domain that every other creator in the history of the human race had enjoyed.
As 2019 drew nearer, the copyright resistance who had fought over this grew nervous, then…elated. Was Congress actually going to heed the evidence of a decades-long failed experiment and decline to extend copyright again?
I had pitched email debates with comrades over this. Michael S Hart, visionary founder of the Project Gutenberg, was
certain it wouldn’t happen (he didn’t live to see it). But then, miraculously, astoundingly, 2019 rolled around and
we got new works in the public domain!
For decades, Jennifer Jenkins from the Duke Center for the Study of the Public Domain published an annual lament for the public domain works we
weren’t getting that year. Jenkins painstakingly cataloged the materials that the public would be denied, though their creators had been only too happy to release them with the belief that the copyright would be 40 years shorter than it turned out.
Starting in 2019, those laments turned into celebrations, starter pistols for a generation of creators discovering a living public domain for the first time since the
Carter administration. The 1923 works that entered the public domain in 2019 were mostly curiosities, but with each successive year, the public domain’s new arrivals get ever more vibrant.
The public domain shipment that arrived on January 1, 2023 was a
banger: we got some Virginia Woolf, some Hemingway, some Kafka, some Faulkner, some Agatha Christie and Edith Wharton, as well as Proust and Hesse:
All of Sherlock Holmes came home to the public domain last year. We also got “Ol’ Man River,” “Puttin’ On the Ritz” and “Mississippi Mud.”
What we didn’t get 2023? Sound recordings. The Music Modernization Act froze all sound recordings in copyright until 2024 – that is, until 11 days hence.
ALT