It's Great That Winnie The Pooh Is In The Public Domain; But He Should Have Been Free In 1982 (Or Earlier)
from the think-of-all-the-culture-lost dept
It’s been four years now since the US finally started allowing old works to enter the public domain after decades in which cultural landlords continually moved to actively remove works from the public domain. Every year since the US got back into the public domain business, we’ve happily run a game jam, encouraging people to make use of these newly public domain works, and this year is no different (check out the Gaming Like It’s 1926 game jam page if you’re interested!).
I’m not entirely sure why, but this year, people seem even more interested than in the past few years. We’ve received way more initial signups than in the past, and more community activity as well. I’m also seeing (outside of the game jam), more public awareness of these newly public domain works than in the past, when it sometimes felt like a more muted public level of interest. Hell, even Ryan Reynolds was quick to jump on the newly public domain to help promote the MVNO Mint Mobile, in which he owns the largest stake.
Perhaps some of the excitement over this year’s public domain entries is the fact that the public are now getting used to the fact that every January 1st, new works enter the public domain. Or, perhaps it just has to do with the prominence of some of this year’s works. When the 1923 class of the public domain came around, many people noted that there weren’t very many “big” cultural touchstones in that batch — and to some extent the same has been true over the last few years’ batches as well. The Great Gatsby had name recognition, but still felt kind of old and a bit stuffy.
This year’s inclusion of the first Winnie-the-Pooh book seems to have changed some of that. But, as Alan Cole rightly points out, it’s a complete travesty that Pooh wasn’t in the public domain decades ago.
As we’ve explained at length before, copyright term extension makes no sense, legally, ethically, or morally. The entire point of copyright law (in the US) is that it is an economic incentive to creators: if you create something creative and new, we give you an exclusive right to copy it for this length of time. If the work was then created, the incentive was enough. The deal was made. Clearly, the copyright term at the date of creation served its purpose — to make sure there was enough incentive to create that work. Extending the term of works already created does absolutely nothing to re-incentivize those old works. They were already made. All it does is take things away from the public. The public promised you an exclusive right for a certain number of years, and at the end the public was supposed to get access to those works.
In the case of Pooh, when A.A. Milne created it, copyright term in the US was 28 years, though it could be renewed for another 28 years. Thus, the maximum copyright that Milne could have possibly expected in the US was 56 years. In other words, he knew that when he published the work in the US, it would enter the public domain here by 1982 at the latest. The fact that Milne was British has no bearing on this, since he still chose to publish in the US under these rules, and that was clearly enough incentive at the time. (For what it’s worth, as I understand it, when he published the works in the UK, the term at the time was “life of the author plus 50” and seeing as he died in 1956, it would be expected that his works would enter the public domain in 2006).
Either way, it makes no sense at all that Pooh is only in the public domain now (and just the first book of Pooh). Cole’s piece goes much more in depth into the inherent trade-offs with copyright.
You may have noticed that most of the works discussed here are almost a century old. That is because 95 years is the length of copyright for many works; it is far too long. The most compelling arguments for copyright are about marshaling sufficient compensation to incentivize creators to work. And any work that still earns attention 95 years after publication has surely been lucrative enough that the author is compensated sufficiently. Or put another way, I doubt there were many artists or writers from 1926 who chose not to produce their best work because it might not receive royalties in 2022.
Extremely long-dated copyrights only matter to the wildly successfulâ â€”and if you are expecting to be wildly successful, you are likely to produce your work anyway. The additional years of copyright are what economists would call â€œinframarginal;â€ they donâ€™t affect your decision because they donâ€™t bring you close to the tipping point where youâ€™d change your mind.
Given the costs of copyrightâ â€”that fewer people enjoy the work, that legal wrangling eats up resources, and that weâ€™d often prefer to allocate rewards in society towards more current innovationsâ â€”it makes little sense to jealously guard intellectual property for as long as we do.
The issue, as always (which Cole doesn’t get into in his piece) is that many people — incorrectly — view copyright as some sort of moral right. Some of this is due to the concerted efforts by the copyright industry to pretend that this limited monopoly right is a form of “property” over the underlying work, and with that they have tried to establish some sort of analogy between tangible goods that you own and this limited legal right that was granted, with a time limit, in exchange for the act of creation.
But any rational look at the copyright system recognizes that’s (1) never been the purpose of copyright in the US and, even more importantly (2) does significantly more harm to the public than good — and that, therefore, it goes directly against the constitutional clause on copyrights, which only allows Congress to create a copyright system that “promotes the progress of science” (the useful arts part is about patents). Giving Disney the rights to control a cartoon bear for basically four extra decades doesn’t do that at all.