How Winnie-the-Pooh highlights shortcomings in US copyright law – and what it could mean for Canada

When AA Milnes loved the classic short story collection from 1926 Winnie the Pooh entered the public domain on January 1, it offered creators and companies the opportunity to reprint and remix the original text with few restrictions.

Do you have an idea for a sequel to the original book? Go for it. Want to tell the story of Winnie in Hundred Acre Wood from Eeyore’s point of view? ET OKAY. Milne’s original text and the characters it contains are free to use.

“When something comes into the public domain … there is no intellectual property right over that subject anymore,” said York University law professor Carys Craig. “So essentially it’s free for everyone to use and without legal restrictions.”

Front page of AA Milne’s collection of short stories from 1926, Winnie-the-Pooh. (Wikipedia)

But don’t expect to see carte blanche use by Winnie and his friends in the Plush Nivers.

Thanks to extensions of copyright over the years, Disney still owns the rights to Milne’s books and characters published after 1926 – including Tigger – as well as later materials published by the company using Milne’s characters.

Long copyright terms in the United States have allowed companies to “keep tapping into franchises that they have developed and that they depend on,” said Michael Hiltzik, a business columnist at the LA Times.

Winnie the Pooh is not the only work coming into the public domain this month.

Ernest Hemingways The sun also rises and Langston Hughes’s The Weary Blues, as well as some notable film and music compositions are now open to all.

Copyright kryb

Critics like Hiltzik and legal scholars say that copyright encroachment – the extension of copyright terms over the past few decades – does little to protect individual creators while restricting access to cultural artifacts, especially those that may not have the prominent role of Peter Plush.

“There is this huge celebration of these works that is now falling into the public domain,” said Craig, who is also the director of Osgoode Hall Law School’s professional LLM program in intellectual property.

“Really, this is not a reason to celebrate – it should be a reason to acknowledge how absurdly long the copyright period has been over these works.”

A rare American first edition of a Peter Plush book signed by author AA Milne and illustrator EH Shephard is shown with Plush characters. Characters in the first book are now in the public domain, including Christopher Robin, Piglet and Eeyore. (Peter Macdiarmid / Getty Images)

Local terms and conditions apply

The length of the copyright period varies by jurisdiction and even based on the year a work is published.

Milnes Winnie the Pooh was protected by copyright for 95 years from the date of publication in 1926. However, works in the United States published after January 1, 1978 are protected in the author’s lifetime plus 70 years. The term may still vary depending on whether the work is authored by a business entity.

In the United States, copyright terms have been regularly extended at the request of large companies, including Disney. The Copyright Term Extension Act of 1998 has been given a critical nickname to the Mickey Mouse Protection Act to extend the period from life expectancy plus 50 years to 70 years.

According to these rules, Steamship Willie, The Disney short film where Mickey Mouse first appeared will become the public domain in 2024, meaning the interpretation of the company’s most iconic character will be for recycling.

While some, including Hiltzik, believe Disney could once again raise a case to extend copyright as a result, Jennifer Jenkins, director of the Center for the Study of the Public Domain at Duke University in North Carolina, is skeptical.

“One of the reasons we [the United States] expanded our concept of copyright was to harmonize with other countries and jurisdictions that had life plus 70, especially [European Union],” she said.

“Now, if we extend our last life plus 70, we’ll be out of tails with everyone else.”

Author AA Milne pictured around 1937. Although the copyright for his debut work Winnie-the-Pooh first expired this year in the United States, Milne’s death in 1956 made his work public property in Canada 15 years ago. (Hulton Archive / Getty Images)

In Canada, copyright extends 50 years after the death of an author. This means that Winnie-the-Pooh actually entered the public domain in Canada in 2007.

However, under the Canada-US-Mexico (CUSMA) trade agreement, attempts are being made to bring Canadian laws into line with the US

The Center for the Study of Public Space warns that due to long copyright terms, cultural works are lost – historical films disintegrate before they e.g. can be digitized – with little, if any, economic benefit to rightholders.

“It benefits the one percent of successful blockbuster plants that are still generating revenue but are still in print after that time,” Jenkins said. “There is this huge interruption between the length of the copyright period and the commercial life of most creative works.”

“If you’re JK Rowling’s grandson or great-grandson, good for you … Harry Potter will probably be in the subgroup.”

Trademark twist

But copyright is not the whole story. Trademark registrations can still restrict the use of a work – even if it is in the public domain.

When it comes to Winnie the Pooh, Disney has trademarks for a variety of commercial uses of the franchise.

This means that while an author could rewrite Milne’s original collection of short stories from 1926 with their own twist, it must be separate from Disney’s interpretation of the characters and the franchise.

“What you need to keep an eye on is if your adaptations of Peter Plush creep closer to the Disney version of that character,” Craig said.

“People have said you know if [Pooh’s] wearing a red T-shirt, you’re already in trouble. “

Winnie The Pooh receives a star on the Hollywood Walk of Fame on April 11, 2006 in Los Angeles. Certain depictions of the famous fictional bear, including the version shown here, are trademarked by Disney. (Michael Buckner / Getty Images)

In addition, Disney has trademarks for the use of Peter Plush on things like clothing and even theme parks – a boon for merchandising. The owner of a small amusement park can not just name their bear-themed carousel after, for example, Plush.

This means that even in the absence of copyright, there are plenty of opportunities for companies, like Disney, to leverage money-making characters for financial gain.

“In a trade context, these problems have also increased,” Craig said. “The United States, as a net exporter of these valuable intellectual property products, has an interest in extending the term and then requiring the other jurisdictions to do the same.”

Craig says it’s time to resist further expansions.

“What we need to avoid is a climate… where we look at [copyright] as a property or a commodity like any other, and loses sight of its importance in promoting learning and in participating in our cultural environment and freedom of expression, “she said.

Written by Jason Vermes. Interview with Michael Hiltzik produced by Laurie Allen.

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