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DURHAM — “Rebel Without a Cause.” “Lady and the Tramp.” Little Richard’s “Tutti Frutti.” Vladimir Nabokov’s “Lolita.”
Last Sunday, on Jan. 1, they, along with many other works created in 1955, would have entered the public domain. They would have been available to be digitized, say, or be re-recorded or re-published, used as fodder for documentaries or as educational tools, or serve as the basis for a new work of art, a new movie or play.
But they weren’t, because American copyright laws changed.
And that’s unfortunate, says the director of Duke University’s Center for the Study of the Public Domain.
“The public domain is the raw material that seeds creativity and innovation,” explained Jennifer Jenkins. “It does what intellectual property laws are actually there to promote.
“Without works in the public domain, would you have any art, any books, any movies? Those don’t happen in a vacuum; they draw on the works that came before.”
The Duke program, beginning its 10th year, is the first university center in the world devoted to the study and promotion of the public domain, the realm of material — ideas, images, sounds, discoveries, facts, texts — that is unprotected by intellectual property rights and free for all to use or build upon.
That realm of material is much smaller than it used to be. Until 1978, under American law, the maximum copyright term was 56 years. Under those laws, works published in 1955 would have passed into public domain on Jan. 1, 2012.
But current law — which is retroactive to works from 1923 — extends copyright protection for 70 years after the date of the author’s death. Corporate “works-for-hire,” like the Disney movie “Lady and the Tramp,” are now copyrighted for 95 years after publication.
As part of its mission to promote research and scholarship on the contributions of the public domain to speech, culture, science and innovation, the center celebrated Public Domain Day — it’s a big deal in Europe, which has less restrictive copyright laws — by publicizing what we’re missing.
“In Europe every year a bunch of stuff enters the public domain,” Jenkins said. “This year, it was works, for instance, by Virginia Woolf and James Joyce, and anyone who died in 1941. They celebrate it with music and parties.”
Center directors thought, Jenkins said, that “it would be interesting to see what we could have had available to all” if the old laws had remained in effect.
Among those works were the inaugural issue of William Buckley’s “National Review” magazine, episodes of “I Love Lucy,” the play “Inherit the Wind” and the Johnny Cash song “Folsom Prison Blues.”
But focusing on the small number of famous works that have stood the test of time — and may still be earning money for their copyright holders — misses the broader point, Jenkins said.
“Very, very, very few works retain commercial values for the full length of the copyright term,” she said.
“If the purpose of copyright is to be long enough so that creators can recoup their investment, that’s great. But of the vast majority of works, only 2 percent have commercial value between 55 and 75 years later. That’s a tiny, tiny sliver of works that still retain value.”
The problem with the current laws, Jenkins added, “is that no one is making any money from 96-99 percent of intellectual works, but we are not able to use them. No one is exploiting them, archivists who want to digitize or educators who want to use them. All those uses are off limits. The copyright term appears to be far longer than what is necessary.”
If we truly want sustainable creation and innovation, Jenkins said, “there has to be a balance between intellectual property rights and the public domain.”
