January 1 of each year marks the expansion of the public domain – at least in theory. When creative materials lose their copyright protection as granted by the U.S. Copyright Act, they pass into the public domain, making them free for use by anyone within the United States. Anyone within the U.S. can reproduce and distribute works in the public domain, in addition to creating derivative works or remixes. A robust public domain allows individuals to create new creative works, amongst other benefits such as increased competition and access. Without the public domain we arguably might not have such valuable creative works like Clueless or Wide Sargasso Sea.
In 2011, however, no new works entered the public domain. As the Center for the Study of the Public Domain (run by several Duke Law School professors, including James Boyle, author of The Public Domain: Enclosing the Commons of the Mind) reported, some prominent works might have entered the public domain this year under pre-1978 copyright law, including Rear Window, On the Waterfront, Lord of the Flies, and Horton Hears a Who!. The Center also observed that under current U.S. copyright law, no new works will enter the public domain in the United States until 2019.
This state of affairs within United States copyright law seems to many observers to obviously contravene the purposes of the Constitution’s Copyright Clause, which empowers Congress “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.” The relevant phrase here is “limited times”; without limits, the public domain will never expand and copyrights may less in perpetuity. As copyrights are effectively government-granted monopolies, perpetual copyright is both economically inefficient (as monopolies can artificially raise prices of goods) and creatively stifling (since new creators can’t use copyrighted materials as freely as public domain materials). Sadly, given the current stranglehold that large corporate copyright holders hold over copyright reform, the prospect of a robust public domain seems unlikely for the foreseeable future.