10 February 2023
When the Public Domain isn’t
By Amalyah Keshet
After their copyright terms end (generally around 70 years after their creator’s death), creative works enter the Public Domain and anyone can freely use them for any purpose. This is the copyright bargain: society benefits by granting limited-time monopoly rights to encourage creation, letting creators exploit their works and reap the rewards – but once that term of exclusive rights ends, anyone can use and benefit from these contributions to culture and knowledge.
As the Copyright Clause in the U.S. Constitution puts it, “Congress shall have power …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.”
In 1710 Queen Anne gave her assent to “An act for the encouragement of learning” protecting books from piracy for 21 years for books already in print and 14 years for newly published ones, and an additional 14 years if the author was still alive when the first term ran out. The U.S. Copyright Act of 1790 was in fact modeled on the British Statute of Anne (1710). Today, copyright in the UK generally lasts for life of the author/creator plus 70 years, as in most EU countries, but Parliament’s original intent was to balance the incentive to create with the interest that society has in free access to knowledge and art.
That was the idea, at least.
Despite the term “for limited times,” the length of copyright protection has been successively extended: in the U.S. from the original 14 years renewable for another 14 and then to 28, renewable for another 14. In 1908, the Berne Convention extended the duration of copyright to life of the author plus 50 years in all countries that are signatories. The U.S. took until 1988 to join Berne, in the meantime increasing the term of protection for U.S. copyright holders to 28 years plus renewal for another 28.
In 1976 a major revision was undertaken in the U.S. to deal with new technology and its impact on what could be copyrighted, how works might be copied, and what constituted infringement. The fair use and first sale doctrines were codified (sections 107 and 109) and copyright was extended to unpublished works.
In 1992 Congress amended the law, making copyright renewal automatic and dramatically curtailing entry into the public domain of works from before 1978. An EU directive increasing the term to life of the author plus 70 years applied retroactively, and works that had entered the public domain because the author had been deceased for 50 years received an additional twenty years of protection.
In 1998 copyright protection in the U.S. was extended from life of the author plus 50 years to life plus 70 years, in what was called “harmonization” with terms of copyright in Europe and the UK, where copyright had already been extended to life plus 70 in most cases. In 2022, Canada increased copyright protection from life of the author plus 50 to life plus 70.
The missing decades
The gradual erosion of the Public Domain described above resulted in what are known as the “missing decades” or the “20th century black hole.” In short, works were trapped by copyright extensions, preventing their entry into the public domain during much of the 20th century, as can be seen in this illustration using Amazon as an example:
“…beginning in 1923, most titles are copyrighted. Books from before 1923 tend to be in the public domain, and the result is that Amazon carries them…”
Jean Paul Gaultier meets the Italian Code of Cultural Heritage
Other things can erode the public domain as well. The Italian government’s efforts to protect what it defines as Italian cultural heritage have resulted in a sort of perpetual copyright protection for it (moral rights are already perpetual in Italy). Recently the Uffizi Galleries took legal action against the French fashion house Jean Paul Gaultier for reproducing Botticelli’s Venus on a new line of clothing.
Obviously Botticelli’s works are in the public domain. However, the Italian Code of Cultural Heritage (Codice dei Beni Culturali e del Paesaggio) allows all Italian public cultural heritage institutions to take legal action when there is unauthorized for-profit use of artworks in their collections. Under the Code, this exception to Italy’s usual term of protection (life plus 70) is given to works considered particularly important for the cultural heritage of the country “to protect against ‘unwelcome uses’ which might threaten their cultural, artistic and moral values.” (Years ago there was an attempt by a Tuscan town to copyright its landscape; it did not succeed) Permission was not sought from the Uffizi for the fashion house’s use of the Botticelli, nor were any fees paid; potential damages could be as much as €100,000. Particularly galling, one assumes, was the headline on the Jean-Paul Gaultier Instagram account: “Le Musee is now opened! Discover our 4 exclusive prints through tops, pants, skirts and dresses now available online.”
In the meantime, a bit of common-sense advice from the Berkeley Center for Law and Business blog points out what many of us working in museums already know: there is a “a mismatched sense of “fair use” on both sides” of cases like this, not to mention a need to check the laws of different countries when it comes to term limits and the public domain. “Collaborations that achieve the highest levels of commercial success and cultural acceptance seem to be collaborations in the true sense: based on mutually agreed upon terms, clear communication about image use and predetermined models of profit-sharing.” Quite right, but that does not address the issue of the erosion of the public domain. “Italy’s cultural heritage code, although promoting important principles such as preservation and protection of heritage, poses a threat to the public domain, to the detriment of creators, reusers and society as a whole.”
Whether or not it succeeds, the Uffizi’s lawsuit will be closely watched for judicial reasoning and precedent.
In 1909 Congress, like Parliament before it, addressed the difficulty of balancing the public interest with proprietor’s rights in language still relevant today:
“The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests” (H.R. Rep. No. 2222, 60th Cong., 2nd Sess., p. 7 ). https://www.arl.org/copyright-timeline/
A list of national terms of copyright protection is available here: https://en.wikipedia.org/wiki/List_of_countries%27_copyright_lengths
Note that in Spain, the term is life + 80 years for authors who died before December 7,1987.