VRA ulleB tin Volume 46 Article 4 Issue 1 Spring/Summer 2019 June 2019 Unlocking the Public Domain Sara Schumacher Texas Tech University, [email protected] Follow this and additional works at: https://online.vraweb.org/vrab Part of the Information Literacy Commons Recommended Citation Schumacher, Sara (2019) "Unlocking the Public Domain," VRA uB lletin:Vol. 46: Iss. 1, Article 4. Available at: https://online.vraweb.org/vrab/vol46/iss1/4 This Feature Articles is brought to you for free and open access by VRA Online. It has been accepted for inclusion in VRA ulB letin by an authorized editor of VRA Online. Unlocking the Public Domain Abstract Public Domain Day, celebrated January 1st of every year, is a relatively new holiday, which has the potential to grow rapidly as 2019 marked the first year in 20 years in the United States that new works were added to the public domain. This article showcases Texas Tech University Libraries’ “Public Domain Day: 1923 Unlocked” exhibition and outreach efforts as one approach, but also highlights other intuitions’ promotions and suggests ways to connect to larger initiatives. Cultural heritage and visual resources professionals can adapt this celebration as a way of advocating for the public domain, educating on copyright literacy, bringing attention to newly public domain collections materials, and exciting and empowering the public. The growth of the public domain enriches many of our missions and goals including supporting creativity and preserving our past and should be celebrated and protected. Keywords public domain, Public Domain Day, copyright, Creative Commons, outreach, advocacy, information literacy Author Bio & Acknowledgements The uthora would like to acknowledge all the people that participated in and contributed to the “Public Domain Day: 1923 Unlocked” exhibition and events. Jessica Kirschner assisted in the creation of public domain, copyright and Creative Commons panels. Nora Hyman provided additional graphic design. Christopher Starcher, Diane Warner, Esther De-Leon, Heidi Winkler, Hillary Veeder, Ian Barba, Jack Becker, Joshua Salmans, Joy Perrin, Rob Weiner, Shelley Barba, and Tom Rohrig wrote panel texts for the exhibition. Sara Schumacher is the Architecture Image Librarian at Texas Tech University in Lubbock. She received her BA in Art History from the University of Texas at Austin (2005), MA in Art History from the University of Oregon (2007) and her MS in Information Studies from the University of Texas at Austin (2011). She is a member of the VRA eD velopment Committee and the incoming Vice President for Conference Program (2019-2021). This feature articles is available in VRA ulB letin: https://online.vraweb.org/vrab/vol46/iss1/4 Schumacher: Unlocking the Public Domain What is Public Domain (Day) This year’s Public Domain Day, January 1, 2019, was an important one: It was the first time in 20 years any published works entered the public domain in the United States through copyright expiration. This 20 year lag was due to segments of the 1998 Copyright Term Extension Act, often referred to as the Sonny Bono or Mickey Mouse Copyright Act. Before its passage, the previous law had scheduled copyright expiration on January 1, 1999 for works published in 1923, but the act added twenty years to works originally copyrighted after 1922 and renewed before 1978. Many works published in 1923 have finally entered the public domain after 95 years under copyright, releasing restrictions upon their use in copying, publishing, editing, and other creative and intellectual pursuits. Google Books, Project Gutenberg, Internet Archive, and HathiTrust celebrated by making tens of thousands of works instantly accessible. HathiTrust alone opened 43,104 volumes. This number will grow as cultural heritage institutions, liberated to digitize 1923 works, release them for public consumption and creative pursuits. Public Domain Day is a very recent celebration. The earliest documented internet mention is a 2004 post on the Canadian Digital Copyright Forum.1 Duke’s Center for the Study of the Public Domain began yearly posts in 2010, highlighting what could have been added to the public domain had the laws not been amended. Libraries, museums, and other non-profits have joined the efforts in recent years with a strong focus on education and advocacy in their activities. With a new batch of published materials to promote each Public Domain Day starting this year, proponents can focus on expanding the reach and scope of outreach and education events. In contrast to the newness of the celebration, the concept of the public domain was implicit in the construction of copyright law at its inception. Article 1, Section 8, Clause 8 of the U.S. Constitution defines the purpose of copyright: “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”2 Over the years, lawmakers have changed the definition of “limited Times,” but there has always been a fixed term length thereby granting to the public those works that no longer qualify for copyright protection. Public domain and additionally fair use serve as integral pieces to the copyright balance “between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand."3 While often couched as an adversarial relationship, maintaining this balance benefits everyone. Creators have the ability to pull from a rich public commons and derive benefits from their labor and the public gets to explore and use creative works through a variety of access mechanisms. Public Domain and Copyright Advocacy In educational and cultural heritage fields, visual resource professionals are stewards and mediators of copyrightable works and therefore have a stake in maintaining the delicate 1 Wallace J. McLean, “Happy Public Domain Day,” Canadian Digital Copyright Forum, January 1, 2004, http://www3.wcl.american.edu/cni/0401/35315.html. 2 U.S. Const. art. I, § 8. 3 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). 1 VRA Bulletin, Vol. 46 [2019], Iss. 1, Art. 4 copyright balance. Visual resource professionals spend so much time trying to document and communicate the copyright status of our collections, that they often have less time for important services for patrons. Libraries and archives in particular struggle with orphan works, whose copyright owner cannot be identified and/or contacted. Museums and galleries must contend with evolving licensing procedures and use of image reproductions in promotion, education, and scholarship. Therefore, it is unsurprising that engagement with copyright issues has become a fundamental part of many of our professions. Libraries and archives in the U.S. share an interest in reforming copyright law to make the process of providing access to patrons less fraught with exemptions and onerous restrictions. The American Library Association asserts “that copyright will only be effective when it is balanced between the rights of the public and the interests of rights holders” and they place “protection of the public domain” at the top of their summary list of positions.4 The Society of American Archivists states the profession will “advocate for amendments to the Copyright Act that facilitate making archival material available for research and use,” writing that “overlong terms of copyright protection inhibit the growth of the public domain to the detriment of the public interest.”5 In addition, these professional organizations also release issue statements and briefs on key legislation and mobilize their members to advocate directly to the public and lawmakers, making them leading voices in copyright reform. Museum and gallery positions on the public domain can be more complicated, but recent moves of many major institutions to utilize open access, Creative Commons, or other licensing models have begun to address new ways of achieving a sustainable copyright balance. Studies in 20126 and 20167 called out practices where certain museums limited access to reproductions of their works as copyfraud, meaning they restricted the public’s rights to the works in ways that directly misrepresent copyright law concerning the public domain. These policies often run counter to the public mission of museums,8 and many institutions are now charting new paths that support collaboration and engagement, including open access digital collections (recent examples include the Cleveland Museum of Art and the Art Institute of Chicago). As more museums release parts of their digitized collections for open access they see benefits through increased efficiency in staff workflows, higher institutional website traffic, and public relevancy through increased use of their collection in research publications, news sources, and social media.9 As Petri, an art historian and lawyer researching the dynamics between art, law, and 4 "Copyright," American Library Association, last modified January 24, 2019. http://www.ala.org/advocacy/copyright. 5 “Issue Brief: Archivists and the Term of Copyright,” Society of American Archivists, last modified January 12, 2016, https://www2.archivists.org/statements/issue-brief-archivists-and-the-term-of-copyright#.Vz4PA_krKUk. 6 Kenneth D. Crews, “Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching,” Copyright,