1. Each January 1, many people note a number of interesting works that become free of copyright restrictions in many jurisdictions, but a 1998 act means none will in the U.S. until at least 2019.
2. The Center for the Study of the Public Domain provides another counterfactual, imagining policy not pre-1998, but pre-1976 (act; effective 1978), which at the top states (repeated at Boing Boing, which inspired this post’s title) works from 1955 or before would be free of copyright restrictions.
3. But as the CSPD page points out further down (see “the public domain snatchers”), the pre-1976 policy also would’ve meant many works from 1983 or before would now be free of copyright restrictions, as the policy allowed for 28 years of restriction, with an optional renewal of 28 years. Historically copyright holders did not bother renewing 85% of works.
4. The aforementioned CSPD page doesn’t note, but their FAQ does, that prior to 1989 a copyright notice was required in order for a work to be restricted. The FAQ says “By some estimates, 90% of works did not include this copyright notice and immediately entered the public domain.” A counterfactual taking this into account would have not only a robust January 1, but every day would be public domain day.
(Of course as I noted last year, every day is public domain day to the extent you make it so, no counterfactual required. But defaults really matter.)
5. Any of the above counterfactuals would be tremendous improvements over society’s current malgovernance of the intellectual commons. But they’re all boring. They are much more difficult to conceive, but the counterfactuals I’d prefer to look are not ones with recent rent seeking undone, but ones attempting to characterize worlds with optimal copyright restriction, which is itself under-explored: no extensions? 15 years? 1 year? Maybe 0? The thing about this sort of counterfactual is not the precise duration, nature, or existence of restriction, but in changing how we think about the public domain — not some old works that it is cool that we can now cooperate around to preserve and breathe new life into without legal threat (or uncool if we can’t) — but about how the world would be changed in a dynamic way with much better policy. I bet we wouldn’t even miss that 9-figure Hollywood dreck if such disappeared (I really doubt it would, but here’s to hoping) that most writers in this field must genuflect to and that are used as the excuse to destroy, because whatever would exist would be our culture, and everyone loves their culture (which of course may be subculture built on superficial or even real rejection of such, etc). It would just also be our culture in another way as well, one compatible with free speech and more equal distribution of wealth, in addition to practical things like a non-broken Internet.