Something is afoot with copyright this Public Domain Day

PG Note: The OP was published on January 1, 2023

From The Guardian:

On New Year’s Day, copyright in the US expires on a new clutch of artistic works. But shady legal shenanigans mean it’s a little overdue…

Here’s a reason to be cheerful this morning: it’s Public Domain Day, ie the day on which a new batch of hitherto copyrighted works comes out of copyright and enters the US public domain – the zone that consists of all the creative work to which no exclusive intellectual property rights apply. For those readers who do not reside in the US, there is perhaps another reason for celebrating today, because copyright terms are longer in the US than they are in other parts of the world, including the EU and the UK. And therein lies a story about intellectual property laws and the power of political lobbying in a so-called liberal democracy.

Among the works liberated for the delight of American citizens this morning are: Virginia Woolf’s To the Lighthouse; the final Sherlock Holmes stories by Arthur Conan Doyle; Fritz Lang’s seminal science-fiction film Metropolis; Alfred Hitchcock’s first thriller; and compositions by Louis Armstrong and Fats Waller. The interesting thing is that these were originally supposed to enter the public domain in 2003, but as Jennifer Jenkins, director of Duke University’s Center for the Study of the Public Domain puts it, “before this could happen, Congress hit a 20-year pause button and extended their copyright term to 95 years”.

The mechanism by which this legal heist was implemented was the 1998 Copyright Term Extension Act (AKA “The Sonny Bono Act” or “The Mickey Mouse Protection Act” depending on your satirical tastes). In passing it, American legislators were simply continuing business as usual in the intellectual property business. The story began in 1790, when Congress enacted the first copyright law, which provided protection for authors for 14 years (plus a further 14 if the author requested it). The term was gradually lengthened in small increments by Congress until 1976, when it was extended by 19 years to 75 years and then in 1998 by the Sonny Bono Act. So, as the legal scholar Lawrence Lessig puts it, “in the 20 years after the Sonny Bono Act, while 1m patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term”.

You don’t have to be Sherlock Holmes to figure out how this happened. (Hint: an inspection of campaign contributions to US legislators in the relevant years may be illuminating. And of course there was also the fear that Mickey Mouse might make his escape into the public domain.) But the end result is that American citizens have had to wait two decades to be free to adapt and reuse works to which we Europeans have had easy access.

As it happens, Sherlock Holmes has a topical relevance, because today the US copyright on the last two Sherlock Holmes stories by Arthur Conan Doyle – from The Case-Book of Sherlock Holmes – expires. This must be depressing news for the Conan Doyle Estate Ltd, which has been almost as assiduous an enforcer of intellectual property rights as was James Joyce’s grandson, Stephen Joyce, in the years when Ulysses was in copyright.

As Jenkins tells the story, the estate’s claim was that the characters of Holmes and Dr Watson remained protected by copyright even if the books themselves had escaped to the public domain. This was eventually challenged by Leslie Klinger, a lawyer and Sherlock Holmes scholar of some renown. The case went through a series of American courts until 2014, when it finally ran into the immovable object known as Judge Richard Posner of the seventh circuit.

“The Doyle estate’s business strategy,” Posner ruled in a characteristically acerbic judgment, “is plain: charge a modest licence fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand … only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice – a form of extortion … It’s time the estate, in its own self-interest, changed its business model.”

Link to the rest at The Guardian