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12 Duke L. & Tech. Rev. 1 (2013-2014)

handle is hein.journals/dltr12 and id is 1 raw text is: 






                IN AMBIGUOUS BATTLE:
     THE PROMISE (AND PATHOS) OF PUBLIC
                     DOMAIN DAY, 2014

                          JENNIFER JENKINST

                             ABSTRACT

    On the first day of each year, Public Domain Day celebrates the
moment when copyrights expire, and books, films, songs, and other creative
works enter the public domain, where they become, in Justice Brandeis's
words, 'free as the air to common use. Educators, students, artists, and
fans can use them with neither permission nor payment. Online archives
can digitize and make them fully available without the threat of lawsuits or
licensing demands. Sadly, in the United States, as a result ofcopyright term
extensions, not a single published work will enter the public domain in
2014. In fact, almost no works created during most readers' lifetimes will
become completely free for them to redistribute and reuse, unless the rights
holders affirmatively decide otherwise.

    In this Article, I will briefly trace the history and consequences of this
legally imposed impoverishment of the public domain. But, I argue, this is
only part of the story. Increasingly, private initiatives are trying to build
zones oflegal freedom that simulate some attributes of the public domain.
At the same time, there are global copyright reform efforts to limit the
negative effects of term extension, at least with regard to orphan works
those that have no identifiable or locatable copyright holder. Although
these efforts are no substitute for a more complete reform of copyright,
collectively, they do transform the legal situation substantially. Thus, while
Public Domain Day in the United States may seem like an empty
celebration, it is also a reminder of this newfound complexity in our
copyright landscape.



Copyright C 2013 by Jennifer Jenkins. This work is licensed under a Creative
Commons Attribution 4.0 International License.
? Senior Lecturing Fellow, Duke University School of Law, and Director for the
Center for the Study of the Public Domain. The contributions and comments of
James Boyle and Balfour Smith are gratefully acknowledged. Portions of this
Article draw on the research and analysis on the Center for the Study of the Public
Domain's Public Domain Day site. See Public Domain Day, CENTER FOR THE
STUDY OF THE PUBLIC DOMAIN, http://web.law.duke.edu/cspd/publicdomainday
(last visited December 22, 2013).

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