Here’s a research question: what effect does a 20-year wait for copyright terms to naturally expire have on public perceptions of the public domain?
We’ve run this experiment before, but we’ll soon have the chance to do it again. The Trans-Pacific Partnership, or “TPP,” a landmark multilateral trade agreement has been negotiated and is awaiting final approval of the 12 participating states. While the agreement would impose a number of problematic requirements on the copyright laws of the participants, the most troubling is one that will largely go unnoticed here in the United States: setting “life plus 70” as the minimum copyright term.
Of course, we already did that here with the Copyright Term Extension Act of 1998 (aka, the “Sonny Bono Copyright Term Extension Act,” or more pointedly, the “Mickey Mouse Protection Act”). There’s been plenty of ink spilled on how life + 70 is too long a term, and it’s disappointing that we’re enacting a sizable obstacle that could prejudice our own reform efforts.
But the worst outcome is what this means for the participating countries that currently observe the international standard life + 50-year term. Sure, there are costs to the public, and these countries will inevitably see more decades go “missing” as they fall into copyright’s black hole. And the orphan works problem will be compounded, and deficiencies in recording systems will be more problematic, and all the things we know to expect will come to pass.
But when term extension is retroactive, a strange thing happens: we don’t see new works entering the public domain. In Canada, there’s been a flurry of excitement over the possibilities of a public domain James Bond. Movie remakes, new stories—people are geared up to explore a cultural touchstone in ways they just couldn’t before. This might be the last time this happens in Canada for a while.
Without the regular celebration of Public Domain Day, it’s easy to see how we might normalize the expectation that copyright doesn’t end. Conversely, America’s ongoing public domain hiatus has galvanized movements around copyright’s public role that otherwise might not have happened. I don’t know which reaction has been more powerful, but it’s worrying to think we might come to expect the missing decades and then, forget them.