Every year around the beginning of January, a lot of public domain hyperbole hits the airwaves with stories about how our lives are about to be enriched now that such-and-such a work is no longer under copyright protection but has fallen into the public domain. It will now be free for anyone to use for remixing, reissue, republication, alteration, distortion…etc. Usually this “excitement” is fed by groups such as the Center for the Study of the Public Domain at Duke University, which has carved out a niche for itself as the go-to place for any reporter who wants a quick sound-bite or commentary to do a public domain story. The Center has proclaimed January 1 of each year as “Public Domain Day”.
This year is no exception, except that in Canada the “celebrations” have been put on hold because Canada has just extended its term of copyright protection by an additional twenty years, bringing its duration of copyright into alignment with that of its major trading partners, the US, EU, UK, Japan, Korea, and Australia. This has led to some hand-wringing in certain circles, such as the Canadian Association of Research Libraries, (which nonetheless has a fair point about access to orphan and out-of-commerce works, an issue that has yet to be addressed by the government,) to outright vitriol and misinformation from anti-copyright voices like TechDirt. (“Canada Steals Public Domain Works from the Public”). We are informed by other copyright skeptics that the works of former Canadian Prime Minister Lester B. Pearson, who died in 1972, will now not be in the public domain for an additional twenty years. (Is that the sound of silence that I hear?).
Much of the ballyhoo around “Public Domain Day” turns on the ability of anyone to “copy, share and build upon” previously copyrighted works (to quote the Duke Center). With copyright no longer applying to A.A. Milne’s 1926 book “Winnie the Pooh”, which entered the public domain in the US last year (although it’s been in the public domain in Canada since 2007) and Arthur Conan Doyle’s “Sherlock Holmes”, which became a public domain work in the US on January 1 of this year (public domain in Canada since 1980), no licence, payment or permission is required to use, copy or adapt these works. Not only do the rights-holder’s economic rights over the work cease to exist, but so too does the ability to control any use of the work. In many cases, the rights are held by the author’s descendants, such as their children and grandchildren. One of the reasons for granting a period of protection post-mortem lasting for approximately two generations after death is the premise that to protect the integrity of the work, control over its use should be vested in those who have a living memory of the author.
With Milne’s first book now in the public domain, the door has opened to the “copy, share and build upon” phenomenon so dear to the folks at the Duke Public Domain Center, resulting in such new creations as the movie “Winnie the Pooh: Blood and Honey”. I haven’t actually been able to bring myself to watch it but according to the New York Times, “the pudgy yellow bear turns feral. In one scene, Pooh and his friend Piglet use chloroform to incapacitate a bikini-clad woman in a hot tub and then drive a car over her head”. Great stuff. Duke’s Center for the Public Domain also touts the creation of Ryan Reynolds’ “Winnie-the-Screwed” ad for Mint Mobile and a comic strip in which Pooh celebrates his nudity as proof of the benefits of the Bear of Little Brain entering the public domain in 2022. When F. Scott Fitzgerald’s “The Great Gatsby” entered the public domain in the US in 2021, the Duke Center gushed that ,“There were …new works such as Michael Farris Smith’s prequel Nick, which tells the backstory of Nick Carraway, a graphic novel adaptation, The Gay Gatsby, The Great Gatsby Undead (the zombie edition), and reports of an animated movie as well as a Gatsby musical by Florence Welch from Florence + the Machine.” Wow. I am sure that F. Scott would have been delighted. What new interpretations of the sleuth of Baker Street can we await in 2023 thanks to Conan Doyle’s “The Case Book of Sherlock Holmes”, the final set of twelve of his short stories, now being in the public domain?
Those who make a big deal of celebrating the arrival of works into the public domain every January 1 are consciously feeding the misconceived narrative that a work under copyright is a work that is largely inaccessible to the public. The opposite is true. Copyright exists as an incentive for the production and dissemination of works. Without it, there would not only be much less creativity, but creative works would increasingly become the exclusive domain of those who are independently wealthy or subsidized in some other way (such as by having an academic position). Alongside this utilitarian purpose are certain moral rights allowing the author to protect the integrity of their work.
Those who want to see as much content put in the public domain in as short a time as possible, like the Canadian Association of Research Libraries to judge by its public positions, seem to regard copyright protection as an inconvenience to be bypassed or neutralized whenever and however that can be achieved. I mean, just think how much easier it would be for hunters and hikers if there was no private property and they weren’t ever impeded by “No Trespassing” signs. They could do whatever they want. The same mindset seems to apply in many of our academic institutions and in the library sector. Others who want classic works in the public domain as soon as possible include publishers who specialize in re-issuing books where copyright has expired. There are many, but in Canada Broadview Press has been particularly vocal. This of course does not stop Broadview or other publishers like them from copyrighting the derivative editions they have just put on the market.
Let me conclude by saying that I am not opposed to the public domain, nor do I subscribe to the theory that copyright should last forever, a position advocated by some. For better or for worse, it is not a perpetual property right and there is no question that the existence of copyright can pose an impediment in some cases where a work is long out of print and the rights-holder cannot be located. These situations can be dealt with through specific exceptions, much as fair use and fair dealing allow for specified unauthorized uses that do not damage the rights of the author. However, the narrative that the public domain liberates content from the shackles of copyright is utter nonsense, although the way that some organizations and some journalists portray it, you would think that is exactly what happens.
It is pretty clear that Disney, the current holders of A.A. Milne’s copyright, would not have authorized the Winnie the Pooh horror film, nor would the F. Scott Fitzgerald estate, who control that writer’s copyrights, have greenlighted the zombie, gay or prequel editions of Fitzgerald’s work. If now having such (copyrighted) works available to the public is a breakthrough in creativity, as the Duke Center seems to believe, then so be it. To me, these “triumphs” are hardly a convincing demonstration of the wonders that await us once a work enters the public domain.
How about Sherlock Holmes meets Godzilla? Oh, Godzilla is not yet in the public domain? Damn! That would have been a major contribution to creativity and culture. How can we possibly live without it?
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