Written By: Christopher J. Martinez
Advocacy groups in favor of creative works falling into the “public domain” received a win when the Sonny Bono Copyright Term Extension Act (“CTEA”) expired January 1, 2019. The American University Washington College of Law co-hosted an event with Creative Commons USA, Wikimedia DC, and the Program on Information Justice and Intellectual Property (“PIJIP”), discussing CTEA’s expiration, entitled “An Expansion of the Commons: Copyright, Creative Commons and the Public Domain.”[1] The event focused on why the shift in policy took place, and “what it mean[t] for the public domain.”[2]
The public’s perception of the public domain was a contributing factor for the non-renewal of the CTEA. Whereas the public domain was seen in a negative light, akin to a “junk heap,” the advent of the internet shifted public opinion of the public domain to that of a “resource for creativity.”[3]
The Copyright Act of 1976 originally extended copyright protections from a maximum of 56 years to 75 years.[4] This was again changed when the CTEA was enacted by Congress in 1998, extending copyright protection to a maximum of 95 years.[5] Without an extension, works from 1923 have finally entered the public domain. [6]
The CTEA faced constitutional challenges in its early years, despite the negative opinion associated with the public domain. In Eldred v. Ashcroft, various associations using previously copyrighted works that had fallen into the public domain brought suit against the Attorney General, claiming the CTEA violated the constitutional requirement stating copyrights would last for “limited times,” and thus violated their First Amendment rights.[7] The Supreme Court held the extension of 20 years was acceptable, equating it to extensions that patents had received, and which did not make protections indefinite.[8] The Court further held the CTEA “protect[ed] authors’ original expressions from unrestricted exploitation,” which is different from the First Amendment that protects “free speech concerns when the government compels or burdens the communication of particular facts or ideas.”[9]
While Creative Commons was not the plaintiff in Eldred v. Ashcroft, it was born out of the lost case,[10] and had the same concerns. It does not want to completely end copyright protections but does not want protections to endue for such a long time. Instead, it wanted to create “new spaces for creative reuse[.]”[11] Creative Commons allows authors to “share [their] knowledge and creativity to build a more equitable, accessible, and innovative world.”[12] It supports copyright protections, and even proposes six different types of licenses designed to give authors the protections they desire, while allowing works to be cultural resources through specific and limited means.[13]
Going forward, works from 1923 are in the public domain, meaning each new year strips old works of their protections and introduces them to the public domain, allowing more works to be used in “education or silent films,” for example.[14] Meredith Jacob, assistant director for academic programs of PIJIP, states “[t]here is a real demand [among educators] for materials in which they don’t have to make the fair use considerations.”[15] Finally, despite this win, it is still important for people to discuss “how public domain and fair use furthers their needs on the issues that they are passionate about.”[16]
[1] David Branigan, Open Access Advocates See End of US Copyright Term Extension Act As Win for Commons,Intellectual Property Watch (January 26, 2019), https://www.ip-watch.org/2019/01/25/open-access-advocates-see-end-us-copyright-term-extension-act-win-commons/.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Eldred v. Ashcroft, 537 U.S. 186, 186 (2003).
[8] Id.
[9] Id.at 190.
[10] Branigan, supra note 1.
[11] Id.
[12] What We Do, Creative Commons, https://creativecommons.org/about/ (last visited Apr. 10, 2019).
[13] Branigan, supra note 1.
[14] Id.
[15] Id.
[16] Id.
