Public Domain Day 2018: Now, Don’t Fucking Touch It

Today is Public Domain Day. That effectively means nothing in the US, where for the past 49 years, no published works have entered the public domain. However, next year, finally, finally, this half-century of starvation will be over.

Paul_Gavarni_-_Woman_Chocolate_Vendor_-_Walters_371454
Woman Chocolate Vendor by Paul Gavarni. Painted ca. 1855, totally in public domain. Isn’t it pretty!

A work that is in a country’s public domain is a work that anyone can modify, sell, or incorporate into a new work, with no permission needed from anyone. There is no copyright holder for works in the public domain. Originally, US copyright law stated that a work—like a book, a painting, a piece of software, a song, etc.—had to be registered for copyright, after which point the right to copy it would rest solely with the author, for 14 years. The author could renew it for another 14 years after that, if they wanted, and then it would enter the public domain. In 1830, this law was modified so that terms were 28 years, again with the option for renewal.

A century and more later, in 1976, copyright term was dramatically increased to the life of the author plus 50 years. Additionally, the 1976 act set a term of 75 years for any work of unknown origin, or any “work for hire”—a term which would be applied to new works, and works published before 1978. A work for hire would be like a photo created by an employee as part of their job—or, it could be a movie created by a group of people (most movies are works for hire), who all sign a contract to designate the movie as a work for hire. As well, this dumpster fire piece of legislation extended the maximum copyright term of works created before 1976 from 56 years to 75 years.

This is a lot to take in, so let me break it down. Suppose I write a book in 1930, and I’m 30 years old, and I publish it that same year. I would hold the copyright until 1958, at which point I would renew it. I’m still alive after all, might as well make sure people are buying it from me and not anyone else. Then I would hold the copyright term until 1986. Now in 1976, I hear about this new copyright act, which allows authors to retain control of their works for as long as they live—and then grants their estates control of the work for 50 years after their death. Well, that doesn’t seem fair to me—I’ll still be alive (possibly) when my copyright expires in 1986, and I still want that money. Good news—the 1976 Copyright Act grants my work a copyright term of 75 years, meaning it will expire in 2005—when I’m 105 (or probably dead.) Hooray! I suppose this is a good scenario, but here’s what could also happen:

Suppose I write a song when I’m 30 in the year 1930, publish the song, and die instantly. Well, my estate would then get to reap the benefits of that song for 75 years. Or, maybe I don’t have an estate—maybe no rightful heir can be found, in which case, this song is stuck in limbo, with absolutely no one benefitting from it, for the better part of a century.

Suppose I write a song in 1922 and it doesn’t matter how old I am. The song remains in the public domain until 1978, at which point the 1976 act goes into effect. It would be among the last batch of published works to enter the public domain, before the 50-year drought that we’re finally reaching the end of now.

But whatever. That’s just some weird bit of business to try and bridge the gap between old copyright law and new copyright law. Let’s see how this would work for an artist working in 1980.

Suppose I make a movie as a work for hire in 1980. A corporation would probably be the copyright holder, and they would hold the rights to the movie for the next 75 years—or, if for some reason they waited a long time to publish it, 120 years. The 1976 act granted copyright for 120 years after creation, or 75 years after publication—whichever comes first. Potentially, a company could wait 119 years to release a movie, and then have it enter public domain the next year. Weird. Anyway, here’s how this works for an individual author:

Suppose I draw a self-portrait in 1980 and die instantly. (I think I would have to publish it too, but I’m not sure. I’ll address how unpublished works are handled in a moment.) My estate will then hold the copyright until 2030.

So this is really bad and I’ll talk about that in a moment, but hold onto your butts for right now because in 1998, the term of copyright was increased to the author’s life plus 70 years, and 95 years for works published before 1978. The term for works for hire was also increased to 95 years, or 120 years after creation (at least they didn’t extend that, I guess.)

Essentially take all the scenarios I just ran through, and add 20 years to each of them (except the scenario where a movie company doesn’t release a film for 119 years.) The Copyright Term Extension Act of 1998 also stipulated that unpublished works created before 1978 would remain under copyright until 2003. However, if the work was published before then, it would then be copyright protected for the next 45 years—until 2048. Thus, although all of the works published within Mark Twain’s lifetime are now in public domain, his autobiography will remain copyrighted until 2048. See, Twain’s autobiography was nominally published in 2001, then actually really for real this time published in 2010, 100 years after Twain’s death, per his wishes. I would criticize the Mark Twain Project for this sneakery, but they’ve actually handled things very well, managing to respect Twain’s wishes, and making the massive 3-volume work available for free online. It’s not as good as releasing everything to the public domain (which would allow people to do translations, make audiobooks, etc., without having to pay), but they could’ve been a lot less courteous.

As long as I’m giving specific examples of how this law effects things, let’s talk about published works. While The Beautiful and the Damned is already in the public domain, Fitzgerald’s The Great Gatsby will still be copyrighted until 2021. Woolf’s To the Lighthouse won’t be available for adaptation until 2023. You won’t be able to post Citizen Kane on YouTube (legally) until 2036. If anyone wants to produce The Crucible by Arthur Miller, they’ll have to pay a production rights fee until 2048. And you’ll need permission to use Michael Jackson’s “Thriller” in a movie, if you want to make that movie before 2079.

Marketplace_in_Lambare
All of the pictures I’m using for The War of Paraguay are public domain. This photo of the Humaitá comércio, taken in 1868, is one of my favorites (though I haven’t used it yet.)

Now, time to talk about why I hate this—but to talk about why I hate these laws, I think it’d be best to first talk about why I love the public domain, and the very concept of public domain.

In 1922 (remember, 1922 was the last year that works which are now in the public domain were published) Karel Čapek published a sci-fi book about a new, incredibly powerful source of energy, which burns matter so completely that its only pollutant byproduct is God. Továrna na absolutno, it was called—”The Factory of the Absolute”—though in English, it would come to be known as The Absolute at Large. In 1927, Thomas Mark translated it into English—a translation which, because Canada and Australia have shorter copyright terms, is currently in their public domain—and in 2005 the University of Nebraska Press rereleased this translation. Currently, for English readers it’s the only easily available edition of Čapek’s wonderful novel—but wait! While Mark’s English translation remains under copyright, the original Czech version is public domain. So in 2012, David Wyllie published an English translation, and put it under a Creative Commons Non-Commercial, Share-Alike license—a license which allows anyone to do whatever they want with his text, as long as they credit Wyllie, release their new work under the same license, and aren’t making money off it.

Because Čapek’s novel was released to the public domain in 1978, Wyllie was able to make his translation of it. And because Wyllie essentially paid it forward, keeping his new work open to modification, I was able to make an audiobook out of that English version. For the first time ever, in 2015, anyone with internet access could listen to an audiobook of The Absolute at Large. (As far as I know, this is the first ever English audiobook of it. Which is neat.) This is good. We are happy about this. Čapek’s book being in the public domain has allowed the creation of two new works, which would otherwise never exist, and which provide greater access to the original work.

La guerra del Paraguay, which I’m currently translating, is also a public domain book, published in 1909. I’m able to translate it without needing to track down the current copyright holder, without needing to publish it in a specific way. Suppose it was under copyright: If I was even able to find the copyright holder, and if they even agreed to let me to do a translation, they would probably not want any of it available for free online. But, that’s not the case. It’s in the public domain, so I can translate it into English and make the whole text (eh, pretty much the whole text) available online for free. This is good. We like this. There are countless copyrighted books in Spanish, or in whatever language, which just aren’t popular enough to warrant a translation facilitated by a traditional publishing company—books which will be locked in their original language for years, maybe decades. This is bad.

Now before I go off on why these laws are terrible, I want to establish what I do like about copyright. I do think that creators should have the sole right to copy, modify, etc., their work. I also really like that in US law, copyright begins at creation—you don’t have to register it, you don’t have to pay any fee, you don’t even have to have a copyright page in a book (though you probably should just for clarity.) I like that it allows for fair use and parody. I don’t really like that copyright lasts for life, but I can see the argument for it. I’m not sure what my ideal copyright law would be (maybe just the old 28 to 56-year term), though I think life of author plus 10 years would be reasonable.

The point of copyright is to promote creativity and innovation. Why should an unknown writer bother creating something original if a publisher, with a whole well-paid marketing team, can just copy it and make tons of money from it—money which the original creator will never see? Because of copyright laws, publishers have to pay writers to license certain portions of the writer’s copyright to them. This is good for writers, and good for readers. Good for writers because they’ll be able to eat, and good for readers because they can read a wide array of unique books, rather than an array of works copying from just a small handful of original sources (probably pirated versions of books written in a country with good copyright law.) It’s also good for readers because well-fed writers can spend more time writing great fiction.

Navarre Beach Reconstructs
Look, this picture actually fits with the post. Kind of. It’s “grotesque,” right? Also just an incredible photo. I have no idea what I would do with it, but I adore it. It was taken for FEMA by Leif Skoogfors in 2005, in the aftermath of Hurricane Dennis. Because it’s a government work, it’s public domain.

However, life of author plus 70 is grotesque. Does a writer really need to know that their great-grandchildren (who may not even be born yet) will make money on a book to be incentivized to write it? Are great-grandchildren even going to care about promoting creativity by licensing their great-grandmother’s works? Concentrating the control of a work in the hands of people who did not even create it, for seventy years, does the opposite of what copyright is supposed to do. It hampers creativity, and restricts access to certain works. It rewards people who may have absolutely nothing to do with art or music or writing or whatever, and penalizes anyone who doesn’t have the capital necessary to license rights.

And copying is a part of creativity. Copying only damages creativity when it hurts the original creator, but if the original creator is dead—or if they’ve agreed to allow modification of their work—then it can only be positive. All of Shakespeare’s classics are drawn from older stories—or from history, the ultimate public domain. And in turn, people have built on Shakespeare’s plays for generations—Rosencrantz and Guildernstern Are DeadWest Side StoryStick Figure Hamlet, No Fear Shakespeare—this is what the public domain allows.

Fortunately, there’s a lot that creators can personally do in spite of these laws. They—we—can license works under Creative Commons, or release them to the public domain. Ultimately, I think that the burden of properly enriching the public domain, and nurturing creativity, falls to creators. Unfortunately, the US government (and most Western governments, IDK about others) just can’t be counted on to reverse these laws, especially since there’s some big money interested in extending copyright protection for as long as possible. There’s nothing that can be done about works published between 1923 and 1978, since so many of the creators of these works were dead when the laws went into effect, and many more are dead now—but 21st century artists, translators, historians, writers, we all need to consider what we can do to ensure that our works enter the public domain, or Creative Commons, at a reasonable time, instead of being held hostage for decades. (Part of this involves not signing away rights to any publisher in perpetuity, since that would allow the publisher to keep the work under strict copyright, even if the creator wants to release it to the public domain.)

And, in the meantime, we’ll just have to be content with whatever enters the public domain each year. As I said at the beginning of this post, in 2019 our half-century of starvation will be over. On January 1, 2019, works published in 1923 will enter the public domain—finally, I’ll have an actual reason to celebrate New Year’s! One work to look forward to is the 1923 English translation of Karel Čapek’s most famous work, R.U.R., by Paul Selver. Some more well-known works: George Bernard Shaw’s Saint Joan, Robert Frost’s “Stopping by Woods on a Snowy Evening,” and Felix Salten’s Bambi: Eine Lebensgeschichte aus dem Walde (the original Austrian, not the earliest English translation. So get to work, Austrian-to-English translators.)

All I ask of the US government (and any other governments, I suppose), is please, please, just stop fucking touching it. Do fucking not extend copyright for another 20 years, please, please. Just try and repeal Obamacare a few dozen more times, or maybe let’s do some infrastructure bills—but please, please, don’t touch copyright law any fucking more. We’ve starved for long enough.

Postscript

This post is a bit scattered, and I feel like I’ve still got a lot to say. For example, what would my ideal copyright law look like? What’s so creative about just copying someone else’s work into a different medium? Aside from creative adaptation, what are the other beneficial ways that public domain works can be modified? How have I benefited from the public domain? (I mentioned this some, but I could go on a lot longer.) How do other countries handle copyright law? (This last question is something I’d have to research, I really have no clue. I think it’s pretty uniform, globally, but IDK.) But there will be many more Public Domain Days to come, so I can explore each of these questions throughout the years. I plan to celebrate Public Domain Day each year with a post like this, talking about how awesome the public domain is, and why excessive copyright terms are bad. And each year, I plan to release something I’ve created into the Public Domain. So, happy Public Domain Day, everyone! There may not be any pre-1978 works entering the public domain today, but Chimaera Cries ON STREAM!!!!! is! Actually it’s incredibly difficult to legally make something public domain (which could also be a post in itself), but I’m going to do as best as I can, and cover all my bases anyway.

I, Francis Bass, hereby waive all copyright and related or neighboring rights together with all associated claims and causes of action with respect to Chimaera Cries ON STREAM!!!!! to the extent possible under the law.

CCoS is a short play/monologue about a speedrunner streaming during a terrorist attack. It’s not much, but it’s what I’ve got. I’ll have something more substantial next year. I’d like to release all of my works to the public domain before I die, but I’ve got a lot of living left to do. Anyway, here are some formats: PDFEpub — Mobi — Docx

Also, this blog post is public domain. IDK what anyone would want to do with it, but why not?

CC0 
To the extent possible under law, Francis Bass has waived all copyright and related or neighboring rights to “Public Domain Day 2018: Now, Don’t Fucking Touch It”. This work is published from: United States.

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