On January 1, 2019, every book, film, and song published in 1923 will fall out of copyright protection—something that hasn’t happened in 40 years. At least, that’s what will happen if Congress doesn’t retrospectively change copyright law to prevent it—as Congress has done two previous times.
Until the 1970s, copyright terms only lasted for 56 years. But Congress retroactively extended the term of older works to 75 years in 1976. Then on October 27, 1998—just weeks before works from 1923 were scheduled to fall into the public domain—President Bill Clinton signed legislation retroactively extending the term of older works to 95 years, locking up works published in 1923 or later for another 20 years.
Will Congress do the same thing again this year? To find out, we talked to groups on both sides of the nation’s copyright debate—to digital rights advocates at the Electronic Frontier Foundation and Public Knowledge and to industry groups like the Motion Picture Association of America and the Recording Industry Association of America. To our surprise, there seemed to be universal agreement that another copyright extension was unlikely to be on the agenda this year.
“We are not aware of any such efforts, and it’s not something we are pursuing,” an RIAA spokesman told us when we asked about legislation to retroactively extend copyright terms.
“While copyright term has been a longstanding topic of conversation in policy circles, we are not aware of any legislative proposals to address the issue,” the MPAA told us.
Presumably, many of the MPAA’s members would gladly take a longer copyright term if they could get it. For example, Disney’s copyright for the first Mickey Mouse film, Steamboat Willie, is scheduled to expire in 2024. But the political environment has shifted so much since 1998 that major copyright holders may not even try to extend copyright terms before they start to expire again.
The politics of copyright have changed dramatically
In 2013, on the 15th anniversary of the 1998 Copyright Term Extension Act, I wrote an in-depth look at the legislative fight over that bill. I talked to Dennis Karjala, a law professor who was part of the lonely opposition to longer copyright terms in the 1990s. He died last year.
“There was not a single argument that actually can stand up to any kind of reasonable analysis,” Karjala told me. But that didn’t matter very much because the lobbying muscle was entirely on one side. Major movie studios joined forces with the estates of famous authors and musicians to push for a copyright extension.
Most of the public considered copyright to be a boring subject with little relevance to their daily lives, so there was little grassroots interest in the issue. Karjala hoped that professional associations of librarians and historians—which had traditionally been important advocates for the public interest on copyright issues—would help stop the bill. But the legislation had so much momentum that these groups decided to settle for minor changes to the legislation. So the bill wound up passing without a significant fight.
The rise of the Internet has totally changed the political landscape on copyright issues. The Electronic Frontier Foundation is much larger than it was in 1998. Other groups, including Public Knowledge, didn’t even exist 20 years ago. Internet companies—especially Google—have become powerful opponents of expanding copyright protections.
Most importantly, there’s now a broad grassroots engagement on copyright issues—something that became evident with the massive online protests against the infamous Stop Online Piracy Act in 2012. SOPA would have forced ISPs to enforce DNS-based blacklists of sites accused of promoting piracy. It was such a bad idea that Wikipedia, Google, and other major sites blacked themselves out in protest. The digital rights activist group Demand Progress emerged from the SOPA fight and has gone on to play a key role organizing protests over network neutrality and other issues.
The protest against SOPA “was a big show of force,” says Meredith Rose, a lawyer at Public Knowledge. The protest showed that “the public really cares about this stuff.”
The defeat of SOPA was so complete that it has essentially ended efforts by copyright interests to expand copyright protection via legislation. Prior to SOPA, Congress would regularly pass bills ratcheting up copyright protections (like the 2008 PRO-IP Act, which beefed up anti-piracy efforts). Since 2012, copyright has been a legislative stalemate, with neither side passing significant legislation.
“The public would fight back”
And that means that advocates of a new copyright term extension bill wouldn’t be able to steamroll opponents the way they did 20 years ago. Any term extension proposal would face a well-organized and well-funded opposition with significant grassroots support.
“After the SOPA fight, Hollywood likely knows that the public would fight back,” wrote Daniel Nazer, an attorney at the Electronic Frontier Foundation, in an email to Ars. “I suspect that Big Content knows it would lose the battle and is smart enough not to fight.”
“I haven’t seen any evidence that Big Content companies plan to push for another term extension,” Nazer added. “This is an election year, so if they wanted to get a big ticket like that through Congress, you would expect to see them laying the groundwork with lobbying and op-eds.”
Of course, copyright interests might try to slip a copyright term extension into a must-pass bill in hopes opponents wouldn’t notice until it was too late. But Rose doesn’t think that would work.
Not only are there many more copyright reform advocates in Washington now than there were 20 years ago, but they’re also well-networked with other public interest groups, she told Ars in a phone interview. As a result, there are “a lot of different eyes on different bills.”
“The likelihood of it slipping by unnoticed” is low, Rose said.
And even some content creators aren’t keen on ever-longer copyright terms. The Authors Guild, for example, “does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works,” a Guild spokeswoman told Ars in an email. “If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible.”
In my 2013 article, I wrote that “the question for the coming legislative battle on copyright is who will prevail.” But now it looks like there probably won’t be a legislative battle at all because hardly anyone is pushing for another extension. And that means we might actually see works start to fall into the public domain next year.