On Oct. 27, 1998, President Bill Clinton saved Disney's Mickey Mouse from a horrible fate: He would have become part of the public domain — creative works that are no longer protected by copyright law.
Or, as many now argue, Mickey Mouse was almost set free, only to be locked up again.
Timothy B. Lee wrote a thorough review in the Washington Post of how copyright law has expanded over the years — getting longer and longer terms and bringing the public domain to a stand still.
"Today, copyrights can easily last for more than a century," Lee wrote. "In America's original copyright system, protection only lasted for 28 years. By the mid-20th century, Congress had doubled the maximum term to 56 years. Then, in 1976, Congress overhauled the copyright system … individual authors were granted protection for their life plus an additional 50 years … . For works authored by corporations — Hollywood blockbusters, for example — copyright terms were extended to 75 years."
With the 1976 overhaul, Mickey Mouse was scheduled to become available for anybody to use in 2003, but Clinton signed an extension of copyright
"It was a windfall to the families and corporations that owned these lucrative copyrights," Lee wrote. "But it meant these iconic works would be off-limits to those who wanted to reuse or reinvent them without permission. And hundreds of thousands of lesser-known works aren't available at all because there's no cost-effective way to obtain permission to republish them."
One ironic way of illustrating just how important it could be to have creative works available in the public domain is to look at Disney's films.
One blogger, "Roar of Wolverine," pointed out what he thought was the hypocrisy of Disney lobbying to extend copyright laws to protect its older creative works: "Snow White, Cinderella, Sleeping Beauty and many other princess stories, were based on age-old fairy tales that Disney was not required to pay license or royalties for. Later works would include children's literature like: 'Pinocchio,' 'Alice in Wonderland,' 'The Jungle Book' (released just one year after Kipling's copyright expired), — all in the public domain! Disney didn't pay a cent for story license, yet reaped many millions. The 'Little Mermaid,' 'Beauty and the Beast,' 'Aladdin' and all features made under the reign of Michael Eisner, would be from public domain."
At the online community Everything2, "NightShadow" listed many movies Disney did that were not from other works, such as "Lilo & Stitch," "The Aristocats" and "The Emperor's New Groove."
With the copyright extensions, it may make some people wonder what creative works reached the end of their protected terms in 2013 and are now available for anybody to use.
The Center for the Study of the Public Domain at Duke University Law School explains: "What is entering the public domain in the United States? Nothing. Once again, we will have nothing to celebrate this Jan 1. Not a single published work is entering the public domain this year. Or next year. In fact, in the United States, no publication will enter the public domain until 2019. Even more shockingly, the Supreme Court ruled in 2012 that Congress can take back works from the public domain. Could Shakespeare, Plato or Mozart be pulled back into copyright? The Supreme Court gave no reason to think that they could not be. And wherever in the world you live, you will likely have to wait a very long time for anything to reach the public domain."
Authors Scott Turow, Paul Aiken and James Shapiro argue in the New York Times that this is a good thing: "(A) handful of law professors and other experts … have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It's a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work."
"Why is it that copyrights should expire ever? I don't see the logic? Why should anybody in the world be able to make Mickey Mouse and Donald Duck ripoffs? How does the public gain in this case? I don't see it," Tavares said. "Why is it that after Disney has spent untold millions a year on keeping Mickey Mouse fresh and popular that they should have to give it all up just because it's some number of years after they first introduced him?"
Tavares says Disney would have just paid licensing fees to use those stories that were in the public domain such as Cinderella, if they were still under copyright protection.
The Center for the Study of the Public Domain, however, explains that the problem is not just well-know copyrighted works such as Mickey Mouse, but the many lesser-known works: "Libraries, museums, historians, archivists, teachers, filmmakers, publishers, and database creators rely on the public domain to collect, preserve, and teach us about our past. Anyone can freely restore and digitize works published before 1923, but far too many projects have had to abandon works published after 1923 because of the extraordinarily long copyright term. Libraries avoid digitizing important resources, archives and databases are incomplete, important historical images are redacted from documentaries, museums cannot publish or digitize millions of pages of archival documents, photographs, oral histories, and reels of film (as the U..S Copyright Office has explained), all because the copyright ownership of these orphan works cannot be determined."
If the 1978 law was still in effect, works published in 1955 would be available and, because the authors did not renew their copyright protection under the laws back then, 85 percent of the works published in 1983 would be in the public domain.
"But now everything published from 1923 onward is presumptively copyrighted and off limits," the center reports, "even though the vast majority of these works are no longer commercially valuable and no one is benefitting from continued copyright protection."
James Boyle in the Financial Times points out that under the current laws, many of societies greatest works of art would not have been possible.
"The problem is not simply that Shakespeare flourished without copyright protection for his work," Boyle said. "It is that he made liberal use of the work of others in his own plays in ways that would today almost certainly generate a lawsuit."
Tavares, who wrote in his blog post he couldn't see any reason why copyrights can't be forever, backed off a little in the comments section of his post.
"I think possibly a distinction could/should be made between stuff that is actively being used and stuff that is not," Tavares said. "For example I'm sure there is some book about programming the Apple 2 which nobody is selling, no one has sold for 10 years, maybe that should fall into the public domain. But, Mickey Mouse is at the other extreme. Millions are still spent on Mickey Mouse. Just this year Disney and Square released Kingdom Hearts for PS2 with Mickey in it. As well as the Racing and Snowboarding games for Gamecube. It seems unfair to me that for some random reason anybody should be able to use Mickey."
According to Charles Kenny at The Animation Anomaly, "Mickey Mouse's films will enter the public domain when their copyright terms expire. As of right now, that is 2020 for Steamboat Willie (barring further term extensions)."
Unless copyright is extended again.