When I was about 20, I fell in love with the love of Vera and Roland, British youth that loved to chat and write about books, Oxford, and love. Roland would go to war. Vera would go to Oxford. They would meet a few times, kiss a few times, and get secretly engaged. He had leave at Christmas 1915. She waited by the phone. His sister called instead. Roland had been killed a few days earlier. Vera was never the same. She became a nurse, and she would write about Roland, her brother, and their two friends, along with her own experiences for the rest of her life. For a long time, she was the only woman recognized as writing about the Great War. I sought to find other women’s stories and compare them to the stories of men. And I did. But I also ran into copyright issues that drove me to law school, to study duration of copyright, and to wait. The wait took over 20 years, but the opening of the U.S. public domain will now be in its second year. Books from 1923 came into the public domain last year, and books from 1924 come into the public domain as of 2020.
Scholars, and especially biographers, have choices: get permission from the families of copyrighted works, rely on fair use, or use public domain works. When I started my dissertation, most of the works I was using as a World War scholar, looking at the war generation writing throughout the 20th century about their experiences (although I didn’t know it), were in the public domain. But before I filed my dissertation, the world had changed. In 1996, foreign works that had previously been in the public domain were suddenly restored by the Uruguay Round Agreements Act, including most of Vera Brittain’s works. In 1998, the Copyright Term Extension Act was passed, freezing the public domain for 20 years. I would be hooded in the Spring of 1998.
When I started my work, many of the books from the 1920s had come into the public domain because they didn’t have proper © notice, or they weren’t renewed in their 27th year. But as of 1996, that was no longer true with the foreign works that were still under copyright in their home country. This included Vera who had all of her works restored, even the ones no one really cared or knew about. Most who were writing about the war had survived through 1918, and many of the great artists and authors lived until the 1970s. All of their works were restored automatically. For a European historian, the world was quite bleak. All of our source materials for the most part were restored and therefore not easily included in scholarly articles and dissertations.
Now, as of 2019, the world is moving again. Works from 1923 were released into the public domain last year. That included Vera Brittain’s The Dark Tide (1923), published in England. And now, her second novel, Not without Honour (1924) comes into the public domain in 2020. The war generation books, generally published 1925-1932 will soon be flooding our public domain. And this matters tremendously.
While Internet Archive has many books that are available through their lending system—books that we have access to and read, and while Section 108(h) allows libraries to copy and disseminate non-commercially available books in the last twenty years of their term, this does not allow scholars the freedom to use the books without fear of threats, or use of more than a judge might think acceptable under fair use. This is particularly problematic for biographers, who tend to rely on some sources in ways that families may threaten with a lawsuit (think the Schloss case with the Joyce estate) or publishers that may feel uncomfortable relying on fair use.
In the last twenty years, fair use has developed into a robust tool. Maybe that was partly because the published public domain was frozen? And we’ve taken strides in Best Practices and other means to make fair use vibrant and usable. Much of the work that I was doing would clearly be covered under fair use today. The world is very different from when I was writing about Vera Brittain and her ghosts in the 1990s. I would probably not have gone to law school. But it is still important that works come into the public domain, and that’s the story we are here to tell.
And so, on the second anniversary of the opening of the public domain again, I am re-reading The Dark Tide and Not Without Honour, and looking forward to the books that should shortly come into the public domain in the future. I’m also very excited to sift through the Internet Archive collection for hidden gems – books written in 1923, 1924, and even anticipating the new additions in 2021 from 1925. Oh, the possibilities!
Here’s some of the works I’m particularly excited about, that are part of the war generation, Vera’s generation that I studied so long ago:
- Agatha Christie’s The Man in the Brown Suit (1924) and Poriot Investigates (1924) (she learned about poisons while working as a nurse in the war, and her husband, Archie Christie flew planes);
- Winifred Holtby (Vera’s best friend), The Crowded Street (1924),
- A.A. Milne, When We Were Very Young (1924) and we get the first appearance of Pooh in the poem “Teddy Bear” (1924) (Milne was also in the Great War), and
- The first novel of Ford Maddox Ford’s Parade’s End series, titled Some Do Not, to name a few.
And it’s not just novels and poetry, its art. Käthe Kollwitz’s War series, 1923 also came into the public domain last year.
A Chasm: US versus the rest of the world
Because of our nutty U.S. system – for works first published before 1978, the term is 95 years from publication, many foreign works will be in the public domain for many years in the United States before they are out of copyright in their home country. Take, David Jones’ “The Garden Enclosed” (1924).
Currently the photograph of David Jones’ painting found on the Tate website has the following copyright information: © the estate of David Jones/Bridgeman Images. You have to license the use. But as of January 1, 2020, the work is in the public domain in the U.S., and so you do not have to get permission to use the painting or an image of the painting. It will remain under copyright in Great Britain through 2044.
But the joy of the public domain in the U.S. is more than the great works; it is also the ephemera – the photographs in newspapers, postcards, films and so much more that have been locked up because they were restored as foreign works. All of these works are now coming into the public domain, and it is glorious. As of January 1, 2020, any work published anywhere in the world before 1925 is in the public domain in the United States.
One of the best features of the Internet Archive is that you can add a filter to any search of the publication year. So, as you search, check “1924”. It doesn’t matter whether the works were published here or in the US, whether they were renewed or had proper notice. They are now in the public domain in the U.S. for all to enjoy unfettered and without restriction.
So, I encourage you to go play on the Internet Archive site and around the world in search of new public domain treasures. Just remember, these works are in the public domain in the U.S. They may be (and likely are) still under copyright in other places around the world.
Elizabeth Townsend Gard holds a Ph.D in European History from UCLA, and is a Professor of Law at Tulane University, where she focuses on the intersection of law and culture, and in particular the role of law in creativity in copyright and trademark. Her work includes the invention of the Durationator, and the host of the popular research podcast, Just Wanna Quilt, exploring the art, craft and copyright of an industry. She is currently a Lepage Entrepreneur Faculty Fellow at the A.B. Freeman School of Business, and the Greenbaum Fellow at the Newcomb Institute, both at Tulane University. For more information on the Durationator and determining copyright can be found at www.durationator.com.
