Is “This Land Is Your Land” in the public domain? It’s complicated, and there’s a pending lawsuit on the subject—you can read more about it here.

Public Domain Day is January 1st of every year. If you live in Canada or New Zealand, January 1st 2018 would be the day when the works of René Magritte, Langston Hughes, Dorothy Parker, Jean Toomer, Edward Hopper, and Alice B. Toklas enter the public domain. So would the musical compositions of John Coltrane, Billy Strayhorn, Paul Whiteman, Otis Redding, and Woody Guthrie. Canadians can now add a wealth of books, poems, paintings, and musical works by these authors to online archives, without asking permission or violating the law. And in Europe, the works of Hugh Lofting (the Doctor DoLittle books), William Moulton Marston (creator of Wonder Woman!), and Emma Orczy (the Scarlet Pimpernel series) will emerge into the public domain, where anyone can use them in their own books or movies.

What is entering the public domain in the United States? Not a single published work. Once again, no published works are entering our public domain this year. (Happily, works published in 1923 will finally begin to enter our public domain next year.) The only works that are clearly in the US public domain now are those published before 1923.

It didn’t have to be this way. If we had the laws that were in effect until 1978, thousands of works from 1961 would be entering the public domain. They range from the books Catch-22, Stranger in a Strange Land, and The Phantom Tollbooth to the films Breakfast at Tiffany’s and West Side Story, and much more. Have a look at some of the others. In fact, since copyright used to come in renewable terms of 28 years, and 85% of authors did not renew, 85% of the works from 1989 might be entering the public domain! Imagine what the great libraries of the world – or just internet hobbyists – could do: digitizing those holdings, making them available for education and research, for pleasure and for creative reuse.

For the works that are still commercially available, the shrinking public domain increases costs to citizens and limits creative reuse. But at least those works are available. Unfortunately, much of our cultural heritage, perhaps the majority of the culture of the last 80 years, consists of orphan works. These are works that have no identifiable or locatable copyright holder. Though no one is benefiting from the copyright, they are unavailable: it is presumptively illegal to copy, redistribute, or publicly perform them.

What can be done about all this? One obvious first step is legal reform that would give greater access to orphan works. The US Copyright Office has continued its efforts to find solutions to the orphan works problem. Fundamentally, though, the key is public education about the delicate balance between intellectual property and the public domain.

You can learn more about the public domain by reading David Lange’s seminal 1981 article “Recognizing the Public Domain” and James Boyle’s book The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008). Naturally, you can read the full text of The Public Domain online at no cost and you are free to copy and redistribute it for non-commercial purposes. You can also read In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day, an article by Center Director Jennifer Jenkins revealing the promise and the limits of various attempts to reverse the erosion of the public domain.

The preceding post was condensed and adapted from articles by Duke Law School’s Center for the Study of the Public Domain, and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. You really should go read the full original!