By Chelsey Heindel

On January 1 every year, the Center for the Study of the Public Domain at Duke University commemorates what would have been a mass migration of works from the restricted world of copyright protection to the public domain. The works celebrated this year were all created in 1957: Samuel Beckett’s Endgame, Dr. Seuss’s The Cat in the Hat, Buddy Holly’s “Peggy Sue,” and Jack Kerouac’s On the Road, to name a few. Any celebration of their entry into the public domain is premature, though. Exactly 39 years premature.

Until 1978, entering the public domain took a maximum of 56 years; after that period, previously protected works could be redistributed, reproduced, and remixed without risking a copyright infringement lawsuit. Thus, books, movies, music, and scientific works created in 1957 were originally scheduled to become available for common use on January 1, 2014.

But in 1976, Congress extended the duration of copyright terms and expanded the scope of protection for existing and future works. Under the Copyright Act of 1976, works produced after January 1, 1978, are now severed from licensing bonds at the beginning of the year following the 70th anniversary of the creator’s death. If an original work was properly registered and, if necessary, renewed between 1923 and 1977, the Copyright Act of 1976 extended the original copyright to 75 years from publication. In 1998, Congress again increased the 75-year copyright term to 95 years. Taken together, the 1976 and 1998 laws prevent any works published between 1923 and 1977 from entering the public domain until 2019. And even in that year, only works published in 1923 will become part of the public domain.

Google’s recently resolved conflict with the Authors Guild highlights how tenuous the law is on providing widespread digital access to works still under copyright. In 2008, the Authors Guild sued Google for copyright infringement over Google’s book-scanning project and related Book Search program. After years of negotiations, the proposed settlement required Google to pay $125 million, $34.5 million of which would create a Book Rights Registry to collect and distribute revenue owed to copyright owners. In exchange, Google and its library partners were released from book digitization liability and, significantly, given the opportunity to use “orphan works.” Orphan works are copyrighted works whose copyright owners cannot be found. Judge Denny Chin rejected the proposed settlement, saying it would have granted Google a “de facto monopoly” and profits without permission from copyright owners. Yet without an effective way to process orphan works, the 39-year delay in entering the public domain significantly inhibits “the progress of science and useful arts” under Article 1, Section 8 of the U.S. Constitution.

On November 14, 2013, Google prevailed against the Authors Guild. Judge Chin held that the copyright doctrine of fair use protected Google from copyright infringement, and ultimately dismissed the case. In his decision, Judge Chin found that the book-digitizing project was transformative for online searching, education, and research. Since Google prevents users from accessing the full text of books by limiting access to “snippets,” full-works scanning and reproduction did not weigh heavily against the fair use defense.

Despite Google’s recent success, the Author’s Guild will likely secure review from the Court of Appeals for the Second Circuit. Moreover, Judge Chin failed to address the benefit of providing access to orphan works. Without explicit permission or prohibition, orphan books will continue to be the forbidden fruit dangling in front of Google. Google’s failed attempt to open access to many orphan works through its digitization program continues to deter universities from granting wide online access to various collections. For example, the University of California at Los Angeles’s online repository for the Arhoolie Foundation’s Strachwitz Frontera Collection of Mexican and Mexican Recordings contains 57,000 rare 45- and 78-rpm records dating from as early as 1905. The university only shares a small fraction of the archived music online because the vast majority of the collection is composed of orphan works. Additionally, the University of California at San Diego holds more than 100,000 photos documenting the past 100 years of marine science from the Scripps Institution of Oceanography. Since the majority of the images were donated without copyright documentation, the library system does not share much of the collection online.

Congress locked the gates of the public domain until 2019. Google won the snippets battle, but likely lost the orphan works war (at least for now). Perhaps Google will continue to expand the canon of search engine copyright law in a meaningful direction, or maybe leaders at public institutions will get their hands dirty by sharing more collections work with the public. Until then, at least I only have to wait 39 years before I can put off reading a free version of Atlas Shrugged.