How Winnie-the-Pooh highlights flaws in U.S. copyright law — and what that could mean for Canada

When A.A. Milne's beloved 1926 classic short-story collection Winnie-the-Pooh entered the public domain on Jan. 1, it offered creators and companies the opportunity to reprint and remix the original text with few restrictions.

Have an idea for a sequel to the original book? Go for it. Want to tell the story of Winnie in the Hundred Acre Wood from Eeyore's point of view? A-OK. Milne's original text, and the characters it features, are free to use.

"When something enters the public domain … there are no intellectual property rights over that subject matter anymore," said York University law professor Carys Craig. "So, essentially, it's free for everybody to use and without legal restrictions."

But don't expect to see carte blanche use of Winnie and his friends in the Pooh-niverse.

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

Lengthy copyright terms in the U.S. have given corporations the ability "to keep the spigot turning on franchises that they've developed and that they depend on," said Michael Hiltzik, a business columnist with the L.A. Times.

Winnie-the-Pooh isn't the only work to enter the public domain this month.

Ernest Hemingway's The Sun Also Rises and Langston Hughes's The Weary Blues, as well as some notable film and musical compositions, are now open to all.

Copyright creep

Critics like Hiltzik and legal scholars say that copyright creep — the lengthening of copyright terms over the past several decades — does little to protect individual creators while limiting access to cultural artifacts, particularly those that may not have the prominence of Winnie the Pooh.

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

"Really, this is not a cause for celebration — it should be a reason to recognize how absurdly long the copyright term has been over these works."

Local terms and conditions apply

Copyright term lengths vary by jurisdiction and even based on the year a work is published. 

Milne's Winnie-the-Pooh was protected by copyright for 95 years from its publication date in 1926. But works in the U.S. published after Jan. 1, 1978, are protected for the life of the author plus 70 years. The term can vary still depending on if the work was authored by a corporate entity.

In the U.S., copyright terms have been regularly extended at the urging of major corporations, including Disney. The Copyright Term Extension Act of 1998 has been critically nicknamed the Mickey Mouse Protection Act for extending the term from life plus 50 years, to 70 years.

Under those rules, Steamboat Willie, the Disney short where Mickey Mouse first appeared, will enter the public domain in 2024, meaning that interpretation of the company's most iconic character will be up for reuse.

While some, including Hiltzik, believe that Disney could once again make 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 copyright term was to harmonize with other countries and jurisdictions that had life plus 70, most notably the [European Union]," she said.

"Now, if we extend our term past life plus 70, we're going to be out of whack with everyone else."

In Canada, copyright extends 50 years past an author's death. That means Winnie-the-Pooh actually entered the public domain in Canada in 2007. 

But under the Canada-U.S.-Mexico Agreement (CUSMA) on trade, attempts are being made to bring Canadian laws inline with the U.S.

The Center for the Study of the Public Domain warns that as a result of long copyright terms, cultural works are being lost — historic films are disintegrating before they can be digitized, for example — with little, if any, economic benefit to the rights holders.

"It benefits the one per cent of successful blockbuster works that are still generating revenue but are still in print after that time," said Jenkins. "There's this enormous disconnect between the length of the copyright term and the commercial lifespan of most creative works."

"If you are J.K. Rowling's grandkid or great grandkids, good for you … Harry Potter is probably going to be in the subset."

Trademark twist

But copyright isn't the whole story. Trademark registrations can still limit how a work — even if it's in the public domain — is used. 

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

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

"What you have to watch for is if your reworkings of Winnie the Pooh creep closer to the Disney version of that character," said Craig.

"People have been saying, you know, if [Pooh's] wearing a red T-shirt, you're already in trouble."

Furthermore, Disney holds trademarks for the use of Winnie-the-Pooh on things like clothing and even theme park rides — a boon for merchandising. The owner of a small theme park can't simply name their bear-themed merry-go-round after Winnie the Pooh, for example.

That means even in the absence of copyright, there are plenty of avenues for companies, like Disney, to exploit money-making characters for economic gain.

"In the trade context, these issues are heightened as well," said Craig. "The U.S., as a net exporter of these valuable intellectual property products, has an interest in extending the term and then requiring the other jurisdictions do the same."

Craig says it's time to resist further extensions.

"What we need to avoid is a climate … where we regard [copyright] as a property right or a commodity like any other, and lose sight of its importance for the encouragement of learning and for participation in our cultural environment and freedom of expression," she said.

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