IP Feudalism and the Shrinking of the Public Domain

Creators of intellectual property used to be granted up to 56 years of monopoly before their works entered the public domain. Since the 1976 copyright act (which came into effect in 1978) copyright has been progressively lengthened so it now extends to the life of the author plus an additional 70 years, i.e. an author’s heirs now get significantly more monopoly power than an author did prior to 1978, truly a kind of IP feudalism.

It’s hard to believe that the extension of copyright for decades after an author’s death can appreciably increase artistic creation and innovation, thus the public has gained little from copyright extension. What has been lost?

If the pre-1976 law were still in place then as of Jan 1, 2012 the following books, movies and music would have entered the public domain (from the Center for the Study of the Public Domain):

  • J.R.R. Tolkien’s The Return of the King, the final installment in his Lord of Rings trilogy
  • The Family of Man, Edward Steichen’s book of photographs showing the diversity and universality of human experience
  • Michihiko Hachiya’s Hiroshima Diary: The Journal of a Japanese Physician, August 8–September 30, 1945, translated by Warner Wells, md
  • Evelyn Waugh’s Officers and Gentlemen, the second book in his Sword of Honour trilogy
  • C.S. Lewis’ The Magician’s Nephew, the sixth volume his The Chronicles of Narnia
  • Vladimir Nabokov’s Lolita
  • Jerome Lawrence & Robert E. Lee’s play about the Scopes “Monkey Trial,” Inherit the Wind
  • Isaac Asimov’s The End of Eternity.
  • Jack Finney’s The Body Snatchers
  • The Seven Year Itch, directed by Billy Wilder; starring Marilyn Monroe and Tom Ewell
  • Lady and the Tramp, Walt Disney Productions’ classic animation
  • Alfred Hitchcock’s To Catch a Thief, starring Cary Grant and Grace Kelly
  • The thriller The Night of the Hunter, directed by Charles Laughton; starring Robert Mitchum and Shelley Winters
  • Two of James Dean’s three major motion pictures: East of Eden, directed by Elia Kazan and co-starring Raymond Massey and Julie Harris; and Rebel Without a Cause, directed by Nicholas Ray and co-starring Natlie Woods, Sal Mineo, and Jim Backus
  • Hollywood versions of major Broadway musicals such as Oklahoma! and Guys and Dolls
  • Richard III, Laurence Olivier’s film version of the Shakespeare play, co-starring Claire Bloom, Cedric Hardwicke, Nicholas Hannen, Ralph Richardson, and John Gielgud
  • Unchained Melody (Hy Zaret & Alex North)
  • Ain’t That a Shame (Antoine “Fats” Domino and Dave Bartholomew)
  • Blue Suede Shoes (Carl Perkins), Folsom Prison Blues (Johnny Cash)
  • The Great Pretender (Buck Ram)
  • Maybellene (Chuck Berry, Russ Fratto, & Alan Freed),
  • Tutti Frutti (Richard Penniman (aka Little Richard)

Under the old law these works and many others could today have been read, seen and played at low cost throughout the world. Consumers have certainly lost from copyright extension. What about creators?

We typically frame copyright and patent strength as an issue between consumers and creators, with consumers assumed to favor weaker rules and creators stronger. But, as I discuss in Launching the Innovation Renaissance, that is the wrong frame. A vibrant public domain can be good for consumers and for creators.

Under the old law, the above works could not only have been consumed they could also at low cost and without requiring the express permission of the original copyright holder have been remixed, reworked and extended in new directions. Under the new regime, innovators will not be able to easily build on these works until 2051 and it could be well into the 22nd century before we get Star Wars prequels worthy of the name.


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