Compared with the years before 1998, the public domain has had a relatively small amount of material added to it for a whole generation. Since then, we have been in a catch-up period. Until 1998, the expiration on copyright was the life of the author plus 50 years, and 75 years for a work of corporate authorship/ownership. But here's the complicated bit, so please bear with me: the US Copyright Term Extension Act of 1998 (CTEA) lengthened that period to the life of the author plus 70 years and for works of corporate authorship to 95 years after publication or 120 years after creation, whichever endpoint is reached earlier. Copyright protection for works published before January 1, 1978 was increased by 20 years to a total of 95 years from their publication date. In practical terms, this means that works published in 1923 should have entered the public domain in 1999. Because of the CTEA, works published in 1923 have to wait until 2019 to enter the public domain. So far, that amounts to 15 years of withholding published works from entering the public domain (with five more years to wait).
There's been a small consolation: unpublished work by authors who died 70 years ago has been entering the public domain. On January 1, 2014, unpublished works (i.e. works never copyrighted) created by people such as composer Sergei Rachmaninoff, director Max Reinhardt, author Kermit Roosevelt, painter Chaim Soutine, philosopher Simone Weil, inventor Nikola Tesla, and actor Conrad Veidt entered the public domain.
Part of the issue with the CTEA was that Congress had been heavily lobbied by the entertainment industry and others to pass the act, since those industries would be the beneficiaries. But what about the public? On that score, remarkably few individuals testified against extending copyright. Congress practically ignored entreaties that the extension of copyright might cause issues.
Likelihood of further lobbying to restrict PD
As we patiently wait for 2019, there is a fear that Congress will again be influenced by the entertainment and other industries to again extend the length of copyright. It is unfortunate that while Congress can welcome the entreaties of the heavily financed industry leaders in favor of copyright extension, there are no concomitantly powerful organizations representing the Citizens of the United States arguing against extension and support for the public domain.
It took some by surprise that Maria Pallante, the Register of Copyrights, has called on Congress to examine many aspects of copyright for the 21st century due to the vast changes brought about by the Internet and the variety of of electronic communication. Among her points is re-examining term length for copyright, to recognize that copyright is not a one way highway for rights holders, but should be a balance achieved between copyright holders and the public.
Chart by Joseph Schillinger graphing JS Bach's Invention No. 8 in F Major, BWV 779
On the surface it may seem as if the public may not be able to do anything. Such a defeatist view sees us at the mercy of the U.S. Congress, lacking the means to mount as effective a response that would be comparable to what the entertainment industry could muster.
But we are not helpless. Each Public Domain Day welcomes many unpublished works that can now be used freely without permission or payment. One form of benefit is that the public is allowed to enjoy these works, But perhaps more importantly, these works can now serve as the basis for the creation of new works. That is the other half of what the US copyright law is about. The annual replenishment of newly free work has been one of the economy’s engines since the 19th century, and has been hampered since the passage of the CTEA.
In this regard, the efforts of Wikimedians all over the world can not be underestimated: increasingly, I see newspapers and journals using media from Commons instead of contracting with for-profit media libraries. At nearly 20 million items and always increasing, Wikimedia Commons provides a counterweight to licensed use of media, giving the world options that were not previously available through such a widespread effort.
Citizens should not be shy in communicating the benefits they derive from public domain works. Creative artists, scholars and numerous other kinds of people and professions depend on freely available work. You are encouraged to strengthen free culture by participating and getting others to participate in photograph events and other media/content creation contests such as edit-a-thons and especially the annual Wiki Loves Monuments competition.
We should make every effort to celebrate and publicize public domain day, to educate the general public and raise the awareness of copyright and public domain, and the balance that needs to be struck between the copyright holders and the public.
May we all look forward and work to ensure that on January 1, 2019, works published in 1923 finally are allowed to enter the public domain, and that in successive years we will welcome published works whose nearly century-old protection comes to its legal conclusion.
^With some works the situation can be more complex. Unpublished works that have been copyrighted by an author’s heirs will continue their protection not based on when they were created, but on when they were copyrighted, ensuring that some works will remain in copyright for well over a century, longer than any living human being.