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MikeNF on 01/02/2012 at 12:12AM
Duke's Center for the Study of the Public Domain (a mouthful) has a great post about what would have entered into the public domain had it not been for the 1976 Copyright Act.
Considering recent cases like Eldred v. Ashcroft, it doesn't seem like this kind of behavior is going to end soon. You can probably expect Congress to continue retroactively extending copyright whenever it looks like the public might get a chance at owning Rebel Without a Cause. The infinite copyright installment plan was effectively endorsed by the Supreme Court in Eldred.
These sanctioned retroactive extensions cause two injuries. First, most obvious, is that most items after about 1923 will likely never enter the public domain.
Second, less obvious, and far more injurious is that our view of the public domain will be permanently and irreperably altered by these extensions. Perpetual copyright will be, if it has not already, the de facto frame of reference -- e.g. the presumption becomes that Mickey Mouse is an inalienable property of the Disney Corporation, and not a pragmatic monopoly, that will eventually expire, granted to Disney by the public. The public domain stops changing, stops growing at a steady rate, and becomes a static quantity. People will treat the public domain as such, and stop expecting ownership of cultural works. The setbacks to modern art done by private ownership of media has been well documented here and otherwise. Continued extensions of copyrights could effectively suppress outrage over the destruction of the public domain by inuring us to its erosion.
So that's why this counterfactual is so valuable. It protects us from the second danger by showing what could be gained without these laws and what is lost by our continued support (or at least tolerance) of them.
Imagine Lolita in the public domain. Lady and the Tramp. Rebel Without a Cause. Mickey Mouse. They feel like current works of art and parts of our culture, not artifacts (however valuable) like Les Misérables or Plato's Republic. These could be all of ours right now, free to use, share, edit, remix, literally property of the public and society. Keeping this reality in the public's minds creates an intellectual connection that makes the pragmatic limited-time copyright bargain much more tangible. Instead, we deal with what copyright has become--a tool, based on spurious moral property rights, to squeeze as much profit possible from valuable works, for eternity. Or at least as long as it is legal to continue doing so.