Law: Duration

When the first Congress enacted laws to protect creative property, it faced the same uncertainty about the status of creative property that the English had confronted in 1774. Many states had passed laws pro- tecting creative property, and some believed that these laws simply supplemented common law rights that already protected creative au- thorship.8 This meant that there was no guaranteed public domain in the United States in 1790. If copyrights were protected by the com- mon law, then there was no simple way to know whether a work pub- lished in the United States was controlled or free. ]ust as in England this lingering uncertainty would make it hard for publishers to rely upon a public domain to reprint and distribute works.

That uncertainty ended after Congress passed legislation granting copyrights. Because federal law overrides any contrary state law, federal protections for copyrighted works displaced any state law protections. ]ust as in England the Statute of Anne eventually meant that the copy- rights for all English works expired, a federal statute meant that any state copyrights expired as well.

In 1790, Congress enacted the first copyright law. It created a fed- eral copyright and secured that copyright for fourteen years. If the au- thor was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. lf he did not renew the copyright, his work passed into the public domain.

While there were many works created in the United States in the first ten years of the Republic, only S percent of the works were actu- ally registered under the federal copyright regime. Of all the work cre- ated in the United States both before 1790 and from 1790 through 1800, 95 percent immediately passed into the public domain; the bal- ance would pass into the pubic domain within twenty·eight years at most, and more likely within fourteen years.°

This system of renewal was a crucial part of the American system of copyright. lt assured that the maximum terms of copyright would be

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granted only for works where they were wanted. After the initial term of fourteen years, if it wasrft worth it to an author to renew his copy- right, then it wasn’t worth it to society to insist on the copyright, either.

Fourteen years may not seem long to us, but for the vast majority of copyright owners at that time, it was long enough: Only a small mi- nority of them renewed their copyright after fourteen years; the bal- ance allowed their work to pass into the public domain.1°

Even today, this structure would make sense. Most creative work has an actual commercial life of just a couple of years. Most books fall out of print after one year.11 When that happens, the used books are traded free of copyright regulation. Thus the books are no longer @0 tivegr controlled by copyright. The only practical commercial use of the books at that time is to sell the books as used books; that us<r—because it does not involve publication—is effectively free.

In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 years to a maximum of 42 by increasing the initial term of copy- right from 14 years to 28 years. In the next fifty years of the Republic the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of S6 years.

Then, beginning in 1962, Congress started a practice that has de- fined copyright law since. Eleven times in the last forty years, Congress has extended the terms of existing copyrights; twice in those forty years, Congress extended the term of future copyrights. Initially the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act Congress extended the term of existing and future copyrights by twenty years.

The effect of these extensions is simply to toll, or delay, the passing of works into the public domain. This latest extension means that the public domain will have been tolled for thirty-nine out of fifty-five years, or 70 percent of the time since 1962. Thus, in the twenty years

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