The New Public Domain

Abstract

In 1998, Congress extended the term of copyright protection, giving existing copyrighted works an additional 20 years of protection. The practical result was to freeze copyright’s public domain for a period of 20 years. Unless Congress extends the copyright term again, copyrighted works will start passing into the public domain in 2019, after a 20 year hiatus. This Article takes a look at some of the issues that will arise when this happens. It argues that the works passing into the public domain post 2018 differ dramatically, and in ways not yet fully appreciated, from the works that comprised the public domain prior to 1998. In addition, dramatic economic, technological, and cultural changes in the past 10 years mean that these new works will enter a vastly changed environment, one poised to make even greater and more immediate use of these works. Together, these developments hold out the possibility that this “new public domain” will in the future play a more vital and important role in our cultural landscape than ever before. At the same time, this Article highlights a number of legal issues that may keep the new public domain from fulfilling this promise. Owners of expiring copyrights will attempt to use a number of doctrines in trademark and copyright law to limit the free use of these works even after they have passed into the public domain. This Article concludes by proposing a number of concrete steps that can be taken to ensure that the public domain lives up to its promise.