Photo from Cooper Hewitt, Smithsonian Design Museum, 1926.
Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.
Nikita Munjal is an IP Innovation Clinic Fellow, a Student Editor with the Intellectual Property Journal, and a third-year JD/MBA Candidate at Osgoode Hall Law School.
While many were observing the new year, intellectual property scholars and the artistic community were celebrating Public Domain Day. January 1st marks the expiration of most jurisdictions’ copyright terms. The previously copyrighted works enter the public domain, free to use and copy. In 2022, A. A. Milne’s Winnie the Pooh, among other famous characters like Felix Salten’s Bambi, entered the U.S. public domain. Already, versions of the beloved teddy bear are making rounds on social media, with celebrity Ryan Reynolds even introducing his own “Winnie-the-Screwed” book in an ad for Mint Mobile.
Though the expansion of the public domain is cause for celebration, the honey-loving bear was already freely available for use in Canada since 2006. Works enter the public domain on a country-by-country basis, depending on the jurisdiction’s laws. Canada currently maintains a shorter copyright term than the U.S, set at 50 years following the death of the author. In contrast, copyright in the U.S. generally subsists for 70 years after the death of the author or 95 years after first publication for works-for-hire. In other words, all works of corporate authorship first published in 1926, such as Winnie the Pooh, did not become freely available to use in the U.S until the end of 2021.
Copyright terms were not always this long. The U.S.’ first Copyright Act of 1790 established a copyright term of 14 years, with an optional 14-year renewal period for living authors. This term was eventually extended to 28 years (with a 28-year renewal option) by a 1909 amendment, then even further to 50 years from the author’s death in 1976. Lobbying by the American entertainment industry, especially Walt Disney Co, led to the enactment of the 1998 Sonny Bono Copyright Term Extension Act, which not only increased U.S. copyright terms but applied them retroactively. Under the former legislation, Winnie the Pooh was to enter the public domain in 2006, 50 years following A. A. Milne’s death, but the Extension Act delayed its entrance by 16 years.
The mismatch between copyright terms amongst jurisdictions poses various problems, especially in our digital age. While the public was free to use and copy Winnie the Pooh’s image in Canada long before January 1, 2022, they had to be careful not to make their works accessible in the U.S. or other jurisdictions such as the U.K. where the work was still protected by copyright. Though the Berne Convention for the Protection of Literary and Artistic Works, adopted by 179 of the 195 countries worldwide, attempted to provide some standardization by mandating a minimum copyright term of 50 years after the author’s death, countries like the U.S. have adopted longer terms and ignore the “rule of shorter term”, which provides that the term of copyright in a work created in a foreign country may not exceed the term received in its origin country.
While U.S. copyright terms remain one of the world’s longest, this will soon change due to the Canada-United States-Mexico Agreement (CUSMA), which came into force on July 1, 2020. As part of the agreement, Canada has until the end of this year to extend their term of copyright protection to 70 years after the author’s life, in harmony with the U.S. This requirement has garnered much controversy, as user rights advocates are concerned that it will lead to a 20-year gap of materials entering the public domain, significantly restricting access to works. In response to these concerns, Innovation, Science and Economic Development Canada released a consultation paper noting several limitations and accompanying measures that Canada may choose to adopt to mitigate any potential harms of term extensions.
What does this mean for Winnie the Pooh? As it has already entered the public domain, any changes to copyright terms will not retroactively affect the bear’s status. However, it is important to note that the Winnie the Pooh available for use differs from Disney’s version, which is still under copyright and trademark protection. Only the characters and stories from A. A. Milne’s original 1926 works are freely available. As author Tim X Price helpfully summarized, “Red shirt on the bear, artists beware. If nude he be, your bear is free.”
Although Disney did not protest Winnie the Pooh’s entrance into the public domain, some intellectual property experts expected the corporation to lobby for extended copyright terms, as it has successfully done in the past. Granted, the rise of the Internet has made this lobbying difficult, as empowered grass-root organizations and the public fight back against such efforts. Nevertheless, if Disney were to revive its lobbying efforts, it would likely be soon as the Steamboat Willie version of its beloved mascot, Mickey Mouse, is set to enter the public domain on January 1, 2024.