Public domain is not elementary, Sherlock

The Sherlock Holmes case highlights the stranglehold of copyright laws in the US

By Latha Jishnu
Last Updated: Thursday 11 June 2015


If you are a detective fiction buff you have in all likelihood been watching the return of Sherlock Holmes on BBC TV in yet another series where the legendary solver of crimes appears in a contemporary setting to unravel present day crimes. So if you belong to the league which has no objection to Holmes in any avatar, you must also be wondering why there is such a hullaballoo over the famous sleuth appearing in a brand new set of stories in the US. The difference is the copyright between the transatlantic countries. In the US, Sherlock Holmes is the subject of a high-profile copyright case that is being fought by the legal heirs of Arthur Conan Doyle, the Scottish physician who created the occasional cocaine-using, pipe-smoking sleuth with the most formidable powers of deduction early in last century. Conan Doyle died in 1930.

Last year, the Conan Doyle estate sought $5,000 from Leslie Klinger, probably the most devoted of Holmes’ fans, for bringing out a book that features Holmes in a new set of yarns. Klinger challenged the estate’s right to collect fees saying that everything about Sherlock Holmes belonged to the public domain. Late in December 2013, a federal court judge in the US ruled in his favour, saying that Holmes and his somewhat dense sidekick Dr Watson belong in the public domain. In other words, anyone who wants to write new Holmes stories or make TV and movie adaptations about the duo no longer need permission from the Conan Doyle estate but with a caveat—they cannot draw on material from any of Doyle’s stories that were published in the US after 1923. The estate is tenaciously sticking to its stand that since some of Doyle’s stories, 10 in all, are still under copyright no one can use the fictional characters till the end of 2022.

That’s because copyright protection in the US for literary works is much longer than in most parts of the world where protection ends 70 years—in India it is 60 years—after an author’s death. In the US, however, where the copyright includes a “life plus” model for works created between 1923 and 1977, copyright has been extended to a fixed 95-year term from first publication. As such, the 10 Holmes stories published in the US as part of The Case-Book of Sherlock Holmes in 1927 will not come into the public domain until January 1, 2023. The estate argues that the characters created by Conan Doyle are not fully finished (complete) till the last set of 10 stories in which they appear.

What does public domain mean in the context of intellectual property rights? It’s not about the general access of readers or viewers to published works. It’s about the freedom to use characters, titles, names, short phrases, ideas and facts as freely and as creatively as one chooses. In other words, users do not have to pay a fee or take a licence to use such material as is available in the public domain. This applies to processes and systems and includes government works and documents. If one is a generous author one can assign published works to the public domain before the expiry of copyright on them. Despite the Conan Doyle estate’s decision to pursue an appeal, In the Company of Sherlock Holmes, the collection of short stories edited by Klinger, will in all likelihood be released this spring. But the case shines the light on the dark fallout of the 1998 copyright laws in the US where an entire generation of works has been locked up for an additional 25 years.

Duke University’s Centre for the Study of the Public Domain laments that as a result everything published after 1923 is off limits “even though the vast majority of these works are no longer commercially valuable and no one is benefitting from continued copyright protection”. Sadly, public domain is shrinking just when “digital technology empowers the millions who could collect, restore and build upon our cultural heritage”.

Every year January 1 is celebrated as Public Domain Day, and the Duke University Centre lists major literary and cinematic works that would have entered the public domain had the copyright law not been amended in 1998. This year it listed Ayn Rand’s Atlas Shrugged and Ian Fleming’s From Russia, with Love among the books and the classic John Sturges film Gunfight at the O.K. Corral that starred Burt Lancaster and Kirk Douglas. What a pity!

In India, there is very little discussion of the public domain—a term that does not even appear in the copyright law. The only way to know whether something is in the public domain is based on whether it is protected by copyright or not. But then how many of us access material that is already in the public domain but locked up in archives, museums and libraries?

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