The New Public Domain

In 1998, Congress extended the term of copyright protection, giving existing copyrighted works an additional twenty years of protection. The practical result was to freeze copyright’s public domain for a period of twenty years. This freeze is about to come to an end. Unless Congress extends the copyright term again, copyrighted works will once again pass into the public domain in 2019, after a twenty-year hiatus. This Article takes a close critical look at the issues that will arise when this happens. It argues that the unique nature of the works passing into the public domain post-2018, along with dramatic cultural, economic, and technological changes in the past ten years, mean that our experience with this “new public domain” will differ fundamentally—and in ways not yet fully appreciated—from our experience with the old public domain. These developments hold out the possibility that the public domain will, in the future, play a far more vital and important role in our cultural landscape. 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 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 arguing that in order to ensure that the new public domain lives up to its promise, courts must develop a more robust and theoretically-grounded understanding of the preemptive scope of copyright’s public domain.

The full text of this Article is available to download as a PDF.