Before 1975, initial copyrights of a work lasted twenty-eight years before the rights-holder either allowed the copyright to lapse or renewed it for another twenty-eight-year term. This standard, set in 1909, was the longest extension allowable in American history: the original Copyright Act of 1790 set a fourteen-year initial term and a fourteen-year renewal period (twenty-eight total years), which the Copyright Act of 1831 revised to a twenty-eight year initial term with a fourteen-year renewal period (forty-two years). Once copyright lapsed, these works became a part of the public domain, a growing list of published works that the public had rights to republish without permission or payment. Until 1975, this uncatalogued collection of works was growing yearly, allowing publishers to revive older texts for the benefit of both their pockets and the public’s knowledge base.
But when the Copyright Act of 1975 passed, the public domain shrank remarkably. Not only was the length of copyright extended until fifty years after the death of the author–which could reasonably mean a copyright length of one-hundred years or more for some texts–but it retroactively re-protected both published and unpublished works, whether or not they were already in the public domain. In 1998, the Sony Bono Copyright Extension Act pushed the coverage to seventy years after the author’s death, creating a delay easily nearing if not surpassing one hundred years. Any book published before January 1, 1923 escaped the worst effects (they were all availiable in the public domain by 1998), but as the law currently stands, the next wave of books to enter the public domain won’t fall out of copyright until 2019. This wouldn’t be as problematic as it is were all publishers to stay in business and were all books to stay in print or at least on library shelves.
Orphan books are titles with no existing copyright owner from whom republication rights can be purchased. These books cannot be rejuvenated by an interested publisher, cannot be reordered by bookstores or libraries, and are at risk for disappearing entirely. Until the copyright expires, no copies can be legally made. And if all physical copies of an orphan book are destroyed and no electronic copy has been legally made, the book is entirely lost to the world. Imagine the number of books at risk for complete obliteration, imagine the knowledge at risk.
A book published today may not be availiable in the public domain until long after our great-grandchildren are adults. Junot Diaz’s National Book Award winning The Brief Wondrous Life of Oscar Wao, which published in 2007 was published when the author was thirty-nine; if he lived to the ripe age of ninety, book wouldn’t be availiable until the year 2128. That’s good news for Penguin Books, especially if the book stays in print for that whole time, because they can earn a profit on book sales for the entire life of the copyright. Junot Dias, however, won’t benefit for the last seventy years of the copyright, though his estate would. But if the book goes out of print, there’s no economic benefit to holding the book under copyright. Now it may be unlikely that Penguin Books will collapse in the near future or that another viable company would fail to purchase rights to a book regarded with such high esteem, but a hundred-and-nineteen years is quite a long time, and there can be no guarantee that this or any book won’t be orphaned. I’d love it if my great-great-great grandchildren could assuredly pick up a copy–probably electronic–of Oscar Wao to understand something about the twentieth century and our interests in the early twenty-first. I’d love to that our cultural consciousness won’t be stifled by legislation that protects the financial gain of publishers and authors over the welfare of American culture and the arts.
