In Ray Bradbury’s 1953 classic, Fahrenheit 451, a “fireman” is a man who burns books “for the good of humanity.” Written at the height of the Cold War, the book paints a shockingly dystopian picture of a culture at war with its own printed record, one deeply infused by Bradbury’s love of books. When the book was written, Bradbury got a copyright term of 28 years, renewable for another 28 years if he or his publisher wished. Most authors and publishers did not bother to renew — very few have a commercial life longer than a few years. That meant that about 93% of books and 85% of all works from 1953 passed into the public domain within 28 years. But Bradbury’s book was a commercial success. The copyright was renewed and as a result it would have been entering the public domain tomorrow — January 1, 2010 — Public Domain Day.
You could reprint it, make a low cost educational version, legally create a braille or audio book edition, even base a new film or play on it. All without asking permission or paying a fee. But copyright law has changed since then. Copyright terms have been twice retrospectively extended. Now, Fahrenheit 451 is not slated to enter the public domain until 2049.
For Bradbury’s book, this means that the reading public, the braille printer, the budding playwright, the school library face either higher prices, or legal restrictions on reuse or both. And they get no benefit from it. Clearly, the incentive of 28 + 28 years was enough to encourage him to write the book and the publisher to publish it. The evidence is that.. it happened. Retrospectively extending copyright is deadweight social loss — harm without benefit. But at least the book is available.
But the legal changes introduced in the years after Fahrenheit 451 did more than just extend terms. Congress eliminated the benign practice of the renewal requirement (which had guaranteed that 85% of works and 93% of books entered the public domain after 28 years because the authors and publishers simply didn’t want or need a second copyright term.) And copyright, which had been an opt-in system (you had to comply with some very minor formalities to get a copyright) became an opt out system (you got a copyright automatically when you “fixed” the work in material form, whether you wanted it or not.) Suddenly the entire world of informal and non commercial culture — from home movies that provide a wonderful lens into the private life of an era, to essays, posters, locally produced teaching materials — was swept into copyright. And kept there for the life of the author plus 70 years. The effects were culturally catastrophic. Copyright went from covering very little culture, and only covering it for a 28 year period during which it was commercially available, to covering all of culture, regardless of whether it was available — often for over a century. Unlike Fahrenheit 451, the vast majority of the culture swept into this 20th century black hole was not commercially available and, in most cases, the authors are unknown. The works are locked up — with no benefit to anyone — and no one has the key that would unlock them. We have cut ourselves off from our own culture, left it to molder — and in the case of nitrate film, literally disintegrate — with no benefit to anyone. The works may not be physically destroyed — although many of them are; disappearing, disintegrating, or simply getting lost in the vastly long period of copyright to which we have relegated them. But for the vast majority of works and the vast majority of citizens who do not have access to one of our great libraries, they are gone as thoroughly as if we had piled up the culture of the 20th century and simply set fire to it; and all this right at the moment when we could have used the Internet vastly to expand the scope of cultural access. Bradbury’s firemen at least set fire to their own culture out of deep ideological commitment, vile though it may have been. We have set fire to our cultural record for no reason; even if we had wanted retrospectively to enrich the tiny number of beneficiaries whose work keeps commercial value beyond 56 years, we could have done so without these effects. The ironies are almost too painful to contemplate.
January 1st 2010 — and every January 1st — is public domain day, the day we celebrate the entry of copyrighted works into the public domain. In the United States no published work will pass into the public domain tomorrow — nor the next year, nor any year until 2019. (If you lived in Europe you might now be celebrating the release of the works of Freud or Yeats.) Thus, we have little to celebrate, and many costs to mourn. Its sad to look at the works that could be entering the public domain today.
Groups around the world are using Public Domain Day as a way to explain the effects of our copyright system on our collective culture. (Communia’s site and the Public Domain Works registry deserve special attention.) ) For more details about Public Domain Day go to the Center for the Study of the Public Domain’s Public Domain Day Website, or visit our Frequently Asked Questions page. And happy Public Domain Day, and Happy New Year, to all of you.