
A Mass of Copyrighted Works Will Soon Enter the Public Domain - punnerud
https://www.theatlantic.com/technology/archive/2018/04/copywritten-so-dont-copy-me/557420/
======
grellas
It may sound quaint to say, but _principled_ application of the law is vital
to a free society.

Ultimately, law is about power.

Under the U.S. Constitution and the Bill of Rights, the federal government is
one of limited powers, meaning (at least it theory) that the federal
government cannot lawfully act beyond the scope of its enumerated powers as
expressly set forth in the constitution.

So, consider how profound (again, I know it sounds quaint) is the
responsibility of those elected officials to act responsibly in how they
legislate about such enumerated powers.

Copyright is part of the legislative power defined in Article I of the
constitution. Right there in Article I, Section 8 you can see it among the
fewer than 20 items set forth for what the Congress is supposed to do: "The
Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States . . . To borrow Money . . . To regulate Commerce
. . . To establish a uniform Rule of Naturalization . . . To Coin Money . . .
To provide for the punishment of Counterfeiting . . . To establish Post
Offices . . . To promote the Progress of Science and Useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries . . . To constitute Tribunals inferior to
the supreme Court . . . To define and punish Piracies . . . To declare War . .
. To raise and support Armies . . . To provide and maintain a Navy . . . And
To make Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof."

I elided a few of the enumerated powers but the above sets forth the great
majority of them.

Thus, while it might be and often is argued that copyright protection does not
actually achieve the things ascribed to it (promoting creative works,
protecting artists’ rights in their creative works, etc.), the fact is that
our laws are profoundly to the contrary: the idea of promoting the progress of
science and useful arts via copyright protection (and patent protection) is
right there among the _fundamentals_ defining the essence of the legislative
power of the federal government. And, to be listed at all among such powers is
in itself profound because the states that formed the United States and
ultimately ratified the constitution as a compact among them were jealous not
to give any more authority to the federal government than was absolutely
necessary.

That authority was granted only on the biggest of issues and was checked and
balanced by and among the legislative power (Article I), the executive power
(Article II), and the judicial power (Article III).

And yet there it stands: the power to promote the progress of science and
useful arts, "by securing for limited Times to Authors . . . the exclusive
Right to their respective Writings". Right there among the powers to print
money, to declare war, to lay and collect taxes, to establish federal courts,
and the like.

And _that_ is why it was so utterly reprehensible when in 1998 the Congress
took existing copyright terms that were to have run for 75 years and
retroactively made them 95 years. Yes, the 1923 copyrights were to have
expired in 1998 and, here we are, 20 years later, grateful to have them come
into the public domain at last.

And in what sense did this retroactive copyright extension serve to promote
the progress of science and useful arts? Well, in no sense at all. It imposed
new rules retroactively. It provided for absurdly long lengths of copyright
protection. It had no bearing at all on the idea of promoting the arts. As
such, it constituted nothing more than a crude exercise of naked power utterly
divorced from the _principled_ reason for having copyright protection at all.

I believe in the value of copyright protection. I think there are excellent
arguments to be made in its favor. But the cause of copyright protection was
not promoted by the 1998 extension. It was significantly set back because
people looking at what that Congress did are rightly revolted by the cronyism
that cynically gave special favors to a privileged few and, suffering from the
pain thereby inflicted on those who were needlessly burdened by completely
arbitrary restrictions on being able to use works that deserved to be in the
public domain, concluded that copyright protection itself is a great evil
burdening society for no good purpose.

To repeat, _principled_ application of the law is vital to a free society.
What happened with copyright in 1998 was a gross departure from that important
truth. Let us hope it does not happen again as the 2018 expirations are about
to occur.

~~~
gohbgl
Besides retroactive copyright being absolutely ridiculous, there are no
studies that clearly show that IP promotes science and arts.

~~~
sirmarksalot
There are no studies because the only data set we have is the world we live
in, where all the wealthy nations have some notion of copyright.

It seems obvious that IP provides _some_ incentive to create, although how
much is completely unknown. It also seems obvious that even in a world with no
legal protection, people would still want to create, though again, how much is
unknowable.

~~~
icebraining
That's true, though it should be possible to study the effects of the Act of
1976, which extended copyright duration in the US from a maximum of 56 years
to life of author + 50 years.

And it seems this was done:

 _" Despite the logic of the theory that increasing copyright protection will
increase the number of copyrighted works, the data do not support it. Instead,
our findings demonstrate that the historic long-run growth in new copyrighted
works is largely a function of population"_

[http://vanderbiltlawreview.org/articles/2009/11/Ku-et-
al.-Do...](http://vanderbiltlawreview.org/articles/2009/11/Ku-et-al.-Does-
Copyright-Law-Promote-Creativity-62-Vand.-L.-Rev.-1669-2009.pdf)

~~~
sirmarksalot
That also doesn't seem surprising in the least, though some properly
incentivized individuals might feign surprise. Using the same gut logic, very
few people are thinking 100 years in the future when they decide to take on a
project. 56 years seems long enough that a creator would be able to work
without worrying about getting ripped off.

An argument could be made that traders at large holding firms would value IP
more highly with a longer term, thus allocating more money, and incentivizing
production, but there are so many links involved that I seriously doubt much
of that could hope to make it back to the artist.

Anyway, I was just responding to the implication that a lack of objective data
is enough to seriously consider abolishing copyright altogether.

------
vitorbaptistaa
Related website:
[http://publicdomainreview.org/](http://publicdomainreview.org/) review works
that are entering the public domain since 2011. There are some pretty
interesting stuff.

Disclaimer: I work for the Open Knowledge International, which used to fund
the Public Domain Review.

~~~
punnerud
Is there any open “database” of what is open, and what is soon to be? (Other
than articles. Example as CSV)

~~~
sudouser
I remember there’s a website in french, I’ll see if I can find it edit:
Wikipedia
[https://en.m.wikipedia.org/wiki/2019_in_public_domain](https://en.m.wikipedia.org/wiki/2019_in_public_domain)

------
emodendroket
Might be obvious to most here, but the article should probably clarify that
the version of the 10 Commandments being made public domain is not the famous
Charlton Heston version but an earlier one.

~~~
cat199
Yet interestingly both were Cecil B DeMille productions.. kind of like the
50's one was a 'talkie remake' of this one..

interesting.

~~~
emodendroket
Hitchcock did the same thing with The Man Who Knew Too Much. I think this was
actually not that uncommon in the past.

~~~
WorldMaker
As much as people want to complain about Hollywood remake culture today, it
has very deep roots to some of Hollywood's earliest days.

~~~
leereeves
Remakes have always been with us, but doesn't it seem like Hollywood is
creating fewer originals these days?

~~~
WorldMaker
It seems like one of those evergreen topics that applies to every Hollywood
Age. Many early Hollywood films were adaptations of books. The Golden and
Silver Ages involved a lot of adaptations of plays and musicals. Greek and
Biblical history/myths have always been huge recurring topics. Most of the
Disney Princessess are centuries old fairy tale characters of one sort or
another. As much as we can laugh at how dumb their attempt at making the Dark
Universe happen this decade, Universal really did get their start by churning
out as many famous monster movies as possible and then blowing early
moviegoers' minds by having those monsters meet and team up; it was film
making's original franchise.

I don't think anyone has done a full inventory, but I think overall the risk-
to-reward equations for original screenplays versus adaptations and franchises
has hardly ever shifted over the years. If anything, the larger numbers of
"indie" studios, non-traditional "studios" in play (Amazon, Netflix, YouTube),
and the increasing ability for everyone to access filmmaking by modern
technology likely lead us to a place where we may actually be at the height of
original entertainment in films, whether or not Hollywood is leading or
following that trend.

~~~
emodendroket
I doubt that's right, because the average American went to the theater way
more often (and things like double features were more common, and studios were
able to compel theaters to take one movie if they wanted another) in the
earlier days of film. Now the pressure is much greater to produce blockbusters
(itself a pretty recent concept).

------
neves
The article just mention a bunch of stuff that will enter the public domain.
Does anybody have a better list of significant works? I believe there must be
a lot of nice music.

~~~
robin_reala
Wikipedia to the rescue:
[https://en.wikipedia.org/wiki/1923_in_literature#New_books](https://en.wikipedia.org/wiki/1923_in_literature#New_books)
and
[https://en.wikipedia.org/wiki/1923_in_music#Published_popula...](https://en.wikipedia.org/wiki/1923_in_music#Published_popular_music)
both have good lists. I’m excited as this will open up a bunch more literature
(and to a lesser extent new sources of cover art) for the Standard Ebooks
project I contribute to.

~~~
bburns_km
Great project! The books have really nice covers, and brief descriptions also
- [https://standardebooks.org/](https://standardebooks.org/)

~~~
robin_reala
The descriptions are written by the producers, and explicitly donated to the
public domain as part of the production.

Covers are interesting. The imprint has gone for a “classic oil painting”
style as a general rule of thumb and those need to be PD as well of course.
That’s trickier than it sounds in the US, as to be PD they need to have been
published in a book in the US pre-1923. For example, the edition of Crime and
Punishment I worked on has an Edvard Munch as cover art.[1] I managed to find
that reprinted in a copy of “Scandinavian Art”, published in the US in
1922.[2] Unfortunately just looking at the PD tags on commons.wikimedia isn’t
good enough as they rarely provide proof and anyone can edit them; the project
could get into real copyright trouble without having proof of PD.

[1] [https://github.com/standardebooks/fyodor-dostoevsky_crime-
an...](https://github.com/standardebooks/fyodor-dostoevsky_crime-and-
punishment_constance-
garnett/blob/dfe4f4726c1e3541117e026193d6be7cdd785c2e/src/epub/images/cover.svg)

[2]
[https://hdl.handle.net/2027/gri.ark:/13960/t8x93xv1g?urlappe...](https://hdl.handle.net/2027/gri.ark:/13960/t8x93xv1g?urlappend=%3Bseq=591)

------
incompatible
Copyright is often so complicated. Fixed dates are easier than year of death +
N years, because in some cases an author's death date isn't public. You end up
with works which are technically public domain, but which can't be safely used
because if you want to avoid any risk of being sued, you have to assume the
worst case. Perhaps the author was young when it was created and lived to be
110.

Note also that the US 1923 rule applies to the date of publication: works that
were created earlier may not have been published until much later. This
typically happens with photographs.

Edit: and don't expect stock images sites to tell you when an image has fallen
into the public domain. They will go on issuing licenses forever. The licenses
are bogus, but there don't seem to be any legal repercussions.

------
fenwick67
This may sound really lame but I'm excited for Bambi to be public domain (the
book, not the film)

~~~
droidist2
I really want Dumbo so I can make music with it

~~~
Y_Y
You can do that already:

[https://www.youtube.com/watch?v=-xgNc3-nBpI](https://www.youtube.com/watch?v=-xgNc3-nBpI)

------
icc97
> many stories by P.G. Wodehouse

This is excellent. Now I just hope they all get converted to text by project
Gutenberg and then hopefully some mashing together with Mycroft [0] and
finally I'll have Jeeves.

[0]: [https://mycroft.ai/](https://mycroft.ai/)

~~~
abawany
But many Wodehouse novels, including most of the Jeeves-Wooster books, are
already on Project Gutenberg:
[http://www.gutenberg.org/ebooks/author/783](http://www.gutenberg.org/ebooks/author/783)
. EDIT: fixed link.

------
haZard_OS
>When that expires, Steamboat Willie can be given away, sold, remixed, turned
pornographic, or anything else.

Rule 34 indeed. I honestly wonder, in this age of memes and YouTube, if we
will see a sudden spasm of creative remixing of the newly open content. Think
of the movie Kung Pow but with much more 4Chan-like variety.

 _shudder_

~~~
wlesieutre
Knowing the internet, I assume this has already happened... only thing that
changes now is they're legally allowed to do it.

~~~
OscarCunningham
I suspect that much pornography is already legal, under the parody exemption.

------
brink
Since Mickey Mouse was first debuted in 1928, does this mean that Mickey Mouse
will become public domain in 5 years if the copyright law doesn't change?

~~~
delinka
No, Mickey Mouse is a trademark. No danger of entering the public domain if
Disney maintain registration.

Film that he's appeared in, however, is under copyright and yes, his earliest
films could indeed fall into the public domain.

~~~
kolpa
Trademarks are not protected from being used in works of art, only from use in
branding.

~~~
delinka
Which is still not the "public domain."

~~~
TheCoelacanth
No, but trademark protections are very limited compared to copyright
protections. For instance, if you wanted to make a movie like League of
Extraordinary Gentlemen but with cartoon characters, once Mickey Mouse's
copyright has expired you would be free to use his character in the movie, you
would just have to avoid using him in advertisements for the movie in a way
that would mislead people into thinking the movie was affiliated with Disney.

------
jedberg
This seems like a good place to throw this out there and get some feedback. My
proposal on how to fix copyright:

1\. Everyone must register their copyright in a searchable database.
Registration is free and good for 10 years.

2\. At the end of 10 years, you must renew your copyright. If you have
transferred ownership, you must submit the chain of custody.

Edit: New option 3a.

3\. The cost of renewal will be 10% of the estimated value of the copyright to
the rights holder for the next ten years.

3a. The cost of renewal will be 10% of what you made off of it in the last 10
years. If you made nothing you pay nothing. You can renew two times and pay
nothing. After that you either have to commercialize or release the copyright.
This fee will be on top of income taxes, but be enforced the same way, through
audits similar to the IRS. This would obviate the need for 4a/b.

4a. To keep the rights holder honest, after they submit their estimated value,
any other person may buy the copyright from them for 110% of the estimated
value within 90 days.

4b. Another way to keep them honest instead is to make the rights holder
submit tax forms to prove their estimate was valid, and pay a penalty if they
were too far off.

5\. If it's not in the database or the fee isn't paid, it's public domain.

6\. Initial registrations for existing copyrights will be done on a rolling
basis on the closest decennial anniversary of the initial copyright. The
person registering must show proof that they currently own the copyright by
demonstrating that they were the creator or they purchased the or inherited
the rights from the creator.

7\. You may extend your copyright for as long as you want, as long as you pay
the fee.

I _think_ this addresses most everyone's concerns.

\- Disney gets to keep Mickey Mouse forever, as long as they keep making money
from it.

\- The public no longer has to wonder if a particular work is copyrighted or
not, because if it's not in the database then it isn't copyrighted.

\- Creators are still incentivized to create because they can hold a monopoly
as long as it's valuable to them.

\- If you go with option 4a, then it might actually make for even greater
works. For example, Fox owns the rights to Star Wars Episode 4. But that alone
is not nearly as valuable to them as it is to Disney, who could put it in box
sets. So Fox is now incentivized to sell their copyright since it Disney could
come in and buy it for 110% of what they claim it is worth to them.

This is a work in progress, and I'd love to know where I missed things.

~~~
e40
_The cost of renewal will be 10% of the estimated value of the copyright to
the rights holder for the next ten years_

This alone would force many things that are actively being developed into the
PD, because people won't have the funds on hand. Unless I misunderstand your
proposal.

EDIT:

And, the impact of that would be that richer companies would swoop in and get
free work. Sounds bad. Real bad.

~~~
vtange
Or only the rich can afford copyright. Or like you said, the rich can be the
"patron" of poor artists and keep them on a leash.

~~~
jedberg
Yeah this was my biggest concern actually, but I hadn't thought of a good way
around it until now.

------
peterwwillis
So Congress has 7 months to extend copyright again.

~~~
bryanlarsen
Which it's highly unlikely to do: [https://arstechnica.com/tech-
policy/2018/01/hollywood-says-i...](https://arstechnica.com/tech-
policy/2018/01/hollywood-says-its-not-planning-another-copyright-extension-
push/)

~~~
dfxm12
Sort of an aside, but I love how the headline of this article: "Hollywood Says
It's Not Planning Another Copyright Extension Push" implies that Congress is
basically powerless against Hollywood's whims (or money).

~~~
bluGill
In the past they were. Congress loves celebrities as much as anyone. Play a
doctors on TV and congress will ask you medical questions, and pass laws based
on your "medical expertise". As a result when Hollywood asks congress listens
more than they should.

However there is something far more important to Congress than celebrities or
money: votes. Hollywood and congress knows that there are a significant number
of voters who are not happy about copyright extensions and are watching. They
know very well that if a copyright extension passes some of them will lose
their job, and that is not something few are willing to risk.

~~~
scarface74
I think that's a lot of tech bubble thinking. The majority of people vote
along party lines. Even those who don't won't have "this person voted for
copyright extension" on the top of their list of concerns.

Then when you back out to the primaries, how many primaries are going to be
won because the incumbent voted for copyright extensions?

This is like the tech hysteria against Facebook, I'm not saying it wasn't
warranted, but most people who do know the details just shrugged and kept
posting cat videos....

~~~
bluGill
The majority of people don't vote in primaries, they consider themselves
independent.

I don't know if they vote alone party lines, but the fact that we have
switched between democrat and republican presidents regularly is proof that
enough people change their vote.

Even ignoring that, those who do vote parties lines and vote in primaries are
also likely to be the ones doing volunteer work to get their guy elected. Make
them mad and they will vote the party, but they won't do as much work and that
can swing an election.

~~~
peterwwillis
They "consider themselves independent", but they are not independent. See:
[https://www.washingtonpost.com/news/the-
fix/wp/2016/01/11/in...](https://www.washingtonpost.com/news/the-
fix/wp/2016/01/11/independents-outnumber-democrats-and-republicans-but-theyre-
not-very-independent/) [https://www.thenation.com/article/what-everyone-gets-
wrong-a...](https://www.thenation.com/article/what-everyone-gets-wrong-about-
independent-voters/) [https://www.politico.com/magazine/story/2016/05/donald-
trump...](https://www.politico.com/magazine/story/2016/05/donald-
trump-2016-polling-turnout-early-voting-data-213897)
[http://republic3-0.com/myth-independent-voter-stefan-
hankin/](http://republic3-0.com/myth-independent-voter-stefan-hankin/)

> the fact that we have switched between democrat and republican presidents
> regularly is proof that enough people change their vote

Not really. Only half the eligible voters actually vote in presidential
elections. Different voters come out to vote at different times in different
states for different reasons, and some of those may switch their vote, but the
majority vote along party lines as noted in the above articles.

The presidential elections are swung by having more ideologically extreme past
presidents. Two terms of Clinton led to two terms of Bush led to two terms of
Obama leads into two terms of Trump, and then we'll have two terms of Bernie
or something equally extreme, like a transgender asexual black mexican jew.
(And I just looked it up - there is a transgender queer black mexican rabbi in
Chicago, but unfortunately you can't get elected in this country without being
a proud Christian)

~~~
scarface74
And Bush lost the popular vote in 2004 and Trump lost the popular vote in
2016.

------
cobbzilla
"Included in the 2019 tranche: William Carlos Williams's The Great American
Novel; Charlie Chaplain's The Pilgrim, and Cecil B DeMille's 10 Commandments."

Anyone eagerly awaiting any other big hits from yesteryear? Which ones?

------
cup-of-tea
You can copyright putting leaves in boiling water now?!

On a serious note, the damage Disney has done to culture is terrible and must
be stopped.

~~~
PurpleRamen
They are just protecting their business, which is legit. It's not their fault
that the flaws of the system where never really fixed since it's creation >150
years ago. Copyright was never ment to work for such long times, nor were
there things like franchises and trademarks when it was created. It's time for
something new, something that is more balanced for everyone. But so far nobody
came up with good solutions.

~~~
CodeMage
While it might not be their fault those flaws were never fixed, it certainly
_is_ their fault that they exploited those flaws willingly and knowingly, to
the detriment of the culture at large. Let's stop pretending that "they are
just protecting their business" is a valid defense.

~~~
blanderman
It seems to me like it kinda was their fault though: "This law, also known as
the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or (derisively)
the Mickey Mouse Protection Act..."
[https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act](https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act)

------
dang
Url changed from [https://boingboing.net/2018/04/30/posterity-
preserved.html](https://boingboing.net/2018/04/30/posterity-preserved.html),
which points to this.

------
cwkoss
Fuck Mickey mouse

~~~
dang
Please don't do this here.

