The Public Domain That Might Have Been

Duke University’s Center for the Study of the Public Domain reports from an alternate universe in which congress hadn’t randomly decided in the mid-1970s that creators of copyright-eligible works of intellectual property lacked adequate commercial incentives to innovate:

Current US law extends copyright protections for 70 years from the date of the author’s death. (Corporate “works-for-hire” are copyrighted for 95 years.) But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years (an initial term of 28 years, renewable for another 28 years). Under those laws, works published in 1954 would be passing into the public domain on January 1, 2011.


— The first two volumes of J.R.R. Tolkien’s Lord of Rings trilogy: The Fellowship of the Ring and The Two Towers.
— Samuel Beckett’s Waiting for Godot (his own translation/adaptation of the original version in French, En attendant Godot, published in 1952).
— Kingsley Amis’ Lucky Jim.
— Aldous Huxley’s The Doors of Perception.
— Dr. Seuss’ Horton Hears a Who!.
— Pauline Réage’s Histoire d’O.
— Fredric Wertham’s Seduction of the Innocent, subtitled “The influence of comic books on today’s youth.”
— Tennessee Williams’ Cat on a Hot Tin Roof.
— Mac Hyman’s No Time for Sergeants.
— Alan Le May’s The Searchers.
— C.S. Lewis’ The Horse and His Boy, the fifth volume of The Chronicles of Narnia.
— Alice B. Toklas’ The Alice B. Toklas Cookbook.

Stringent restrictions on the use of intellectual property raise the cost of creation for commercial and non-commercial producers alike. They increase burdens identically for people subjectively motivated by greed, for those subjectively motivated by a desire for fame, and for those who genuinely value creating works of merit. On the other side of the ledger, stringent restrictions do increase the incentives for innovation as well. But they only increase the pecuniary incentives available to greed-motivated commercial producers. In other words, hope everyone’s looking forward to Transformers 3.

Meanwhile, in exchange for shifting the balance toward commercial production, we also increase deadweight loss for consumers.