In the early days of the Republic, copyright terms lasted 14 years, with the possibility of renewal for another 14 years. After the term expired, that work entered the public domain, the intellectual equivalent of the Lockean commons, free for anyone to use as they pleased.
Copyright terms have been extended to absurd lengths over the past 200 years, but thankfully they are not infinite. This is why we can start 2019 off with some good news. From Smithsonian Magazine’s Glenn Fleishman:
At midnight on New Year’s Eve, all works first published in the United States in 1923 will enter the public domain. It has been 21 years since the last mass expiration of copyright in the U.S.
That deluge of works includes not just “Stopping by Woods on a Snowy Evening,” which appeared first in the New Republic in 1923, but hundreds of thousands of books, musical compositions, paintings, poems, photographs and films. After January 1, any record label can issue a dubstep version of the 1923 hit “Yes! We Have No Bananas,” any middle school can produce Theodore Pratt’s stage adaptation of The Picture of Dorian Gray, and any historian can publish Winston Churchill’s The World Crisis with her own extensive annotations. Any artist can create and sell a feminist response to Marcel Duchamp’s seminal Dadaist piece, The Large Glass (The Bride Stripped Bare by Her Bachelors, Even) and any filmmaker can remake Cecil B. DeMille’s original The Ten Commandments and post it on YouTube.
On its face, this is certainly a good thing. But the fact that it took almost a century for these works to be available to all is in another sense representative of a policy failure.
All of the authors listed died long ago, and if the purpose of copyright is to “promote the Progress of Science and useful Arts,” the intellectual monopoly should have expired after the authors did (you can’t incentivize a corpse).
Another sign that something is seriously wrong with our current copyright regime is that such a massive entry into the intellectual commons hasn’t happened in 21 years. Why? In 1998, the Sonny Bono Copyright Term Extension Act extended the life of copyrighted works by another 20 years.
This expansion of the intellectual commons is certainly a win for those who want to enjoy or improve upon these works without fear of legal reprisal. But we shouldn’t forget that this expansion was long overdue, and absent our current regime more works would have been available a long time ago.