Dispatches from the Digital Revolution
A recent article from the Wired blog Threat Level set off a minor uproar among my online colleagues last week on a topic near and dear to our hearts: copyright—and, by association, the public domain. Unfortunately, we as a collective have a pretty hazy understanding of copyright law. So here goes, folks: a brief history of US copyright.
A defining note
Copyright’s specific role is to limit the rights of copying, distributing, performing, and displaying a work. These rights are exclusively allotted to the work’s creator and/or those who the creator authorizes to use his or her work.
According to the Library of Congress, a variety of broadly-defined categories of works are granted copyright protection, included but not limited to literary works, musical works, and 2D or 3D works of art. Under US copyright law, all unpublished works are automatically granted copyright protection upon creation.
A brief history
A full treatment of copyright history could take up volumes; unfortunately, I only have a few hundred words. And so, as concisely as possible: the highlights of US copyright.
1789. The US Constitution offers limited times rights for works (Article I, Section 8, Clause 8).
1790. Copyright Act of 1790 established copyright to last for 14 years, upon which the term could be renewed.
1909. The 1909 Copyright Act is created to accommodate new technology—specifically, the invention of piano rolls.
1976. More new technology prompted more copyright law changes. This time, the technology is the Xerox machine. The 1976 Copyright Act (or Title 17 of the United States Code) is the current guiding legislation for US copyright.
1988. The U.S. accepts the Berne Convention, which has been Europe’s standard of copyright since the 1880s. This establishes a rule of thumb that limits copyright to the life of the author plus 50 years.
1998. The Digital Millenium Copyright Act is passed, to the chagrin of many. This act specifies ways in which content can be viewed and gives creators the right to control who reposts or links to content. Specifically, this act was written with the music industry in mind.
1998*. The Sonny Bono Copyright Term Extension Act is passed. This extends copyright in the US by 20 years, which means that copyright protection now extends 95 years after creation for works created previous to 1978. (Note that 1978 is the year that the 1976 copyright act went into effect.)
*Companies such as Disney benefit from this act because they are able to retain the rights to Walt Disney’s original material. Unfortunately, this effectively freezes any other works created concurrent with Disney’s works from reverting into the public domain.
What this means for the public domain
The Sonny Bono Copyright Term Extension Act, in addition to all of the other copyright legislation of the 20th century, makes the public domain more complicated than you might expect. The Sunstein copyright chart is a good resource for identifying whether a work is in or out of copyright, and explains these things far better than I can sum up in a few sentences. (Or here’s a slightly… longer version of copyright history. Highly recommended.)
The gist of it all is that the public domain, free and clear, ends at 1923. After 1923, several decades of the 20th century are in dubious copyright status. Some of these are “orphan works,” and have caused all kinds of trouble for companies trying to digitize works from this period (for a summary, see “Orphaned Works” in the Appazoogle Glossary).
The problem with this is that these orphaned works represent the bulk of our cultural record from the 20th century. While rights holders are digitizing all recent publications—as a matter of course—and entities like Project Gutenberg and ProQuest are digitizing public domain works, the 20th century presents a sort of black hole in the digital cultural record.
What’s the solution? Maybe the Wired article is right: going back to the Berne Convention. And sticking to it.