Under a court ruling this week, Warner/Chappell music publishing no longer gets a slice of every “Happy Birthday” cake. After years of litigation, a federal court in California has found that the company does not, in fact, hold copyright to the words of a century-old children’s ditty. “Happy Birthday” is quite possibly the most popular and enduring English-language song in the world, and it’s so much a part of our everyday lives that many are surprised to learn that it might be proprietary. Although the melody has long been out of copyright, Warner/Chappell has maintained a chokehold on the lyrics, making an estimated $2 million a year in royalties from people like Jennifer Nelson, a filmmaker who sought to make a documentary about “Happy Birthday” only to learn that Warner would charge her $1,500 to use it in her film.

The recent ruling was a qualified victory for the public domain. The court found that there was no evidence that the songwriters, Mildred and Patty Hill, ever transferred the rights to “Happy Birthday” lyrics. While this doesn’t conclusively establish that any copyright in the song has expired, it doesn’t seem likely that a new claim to ownership will emerge anytime soon—either because the song has been orphaned, or otherwise because it has actually been in the public domain all this time.

All of this legal wrangling over a six-note preschool song highlights many of the aspects of our copyright system that are most in need of change. Most importantly, we need to do something about the overly-long copyright terms that contribute to confusion about ownership and obstruct new works of authorship that would build on our shared cultural past.

Authors Alliance has advocated against further lengthening copyright terms in our Principles and Proposals for Copyright Reform and in our comments on ongoing trade agreement negotiations. In this case, the advanced age of “Happy Birthday” made it difficult to either verify or disprove Warner/Chappell’s ownership claim, while allowing it a copyright that would have extended to 2030 had it prevailed.

The amount of time and effort spent teasing apart the ownership of “Happy Birthday” also highlights the need for better information flows about copyright ownership. When work is in the public domain, the public deserves to be able to be confident in that assessment. When work is owned, authors and the public are best served by making the identity of the owner reasonably knowable. Warner/Chappell’s bottom line aside, no one was served by wrongly keeping “Happy Birthday” out of reach of singers, filmmakers, and anyone else who wanted to feature this ubiquitous little song in their creative work.

Authors Alliance is joining Creative Commons, the Electronic Frontier Foundation, Knowledge Ecology International, and New Media Rights in calling on the United States Trade Representative to ensure that the Trans Pacific Partnership Agreement (or “TPP”) doesn’t prejudice efforts to resolve the ever-worsening orphan works problem.

Orphan works—copyrighted works that can’t participate in contemporary culture because their ownership is either unknown or untraceable—have always been of special concern to Authors Alliance. Authors need access to the works of the past in order to craft their own contributions; and authors’ own intellectual legacies are diminished when their works become unavailable to others. As troubled as we are that our current system leaves millions of works to fall out of public view and use, we believe strongly that the orphan works problem is solvable, and are encouraged by the attention the United States Copyright Office has recently been giving the issue.

In order to see the orphan works problem solved, it is essential that we avoid making treaty commitments that would tie our legislators’ hands. We hope the Trade Representative agrees.

Read the letter here.