In the spirit of thinking real thoughts about real copyright, I thought it might be interesting to take another look at a concept that gets a lot of play in free-culture rhetoric – the public domain. Think of this posting as a follow-up to my earlier Copyright Reform 101 for the Cultural Sector.
What is the public domain?
The common understanding of public domain is of an abstract realm containing all the expressions of ideas and information that are not currently protected by a copyright term. The term public domain sounds like a place - like physical space - and I’m guessing that’s because it is a concept borrowed from the physical realm, just as so much of the thinking having to do with intellectual property is borrowed from the world of physical property.
In the world of physical space – look away from your computer screen for a second… that world – the public domain might be any space around us that we cannot completely reserve for ourselves alone. It contains all of the things that are our common property. Streets, sidewalks, parks, transit systems, public wildernesses. It is not possible for someone to set up gate on a public sidewalk and decide to let only certain people walk through it. Similarly one cannot choose the spot in the park with the best view of the pond and build a house on it, as that would be taking what is public and making it private. In the theory of public space, everyone gets to use the sidewalk and the park equally.
The public domain of intellectual property is a bit like that. At least that’s how many folks picture it, as a large public park filled with cultural works that everyone gets to share equally. And that’s why free-culture advocates are so protective of their own concept of the public domain. If each cultural work in the public domain is an individual flower in the park, then someone demanding copyright protection over one of those works looks a bit like stealing flowers from the park. And without those particular flowers, the public domain is diminished.
Is it really that simple?
Well, no. Public space in both the physical and abstract spheres cannot be understood in such exclusive terms. It is, in fact, possible to license public space for private uses, and there are certain limitations placed on the license. If someone books a soccer field in a public park for their kids’ tournament, does that mean there will never be a soccer field there again? Obviously not, and neither does it mean that no-one else is allowed to come and enjoy the tournament, though there will almost certainly be rules about who can be on the field during game play. As a happy, functioning society, we all accept these rules and limitations on our public space.
Similarly, even without copyright you can actually take a part of the public domain and declare it as your own. That’s what folks do when they take an unprotected story (a fairy tale, for instance) and publish a new edition of it. It is even possible (and is common practice) to then charge people to buy that new edition. As with the soccer field, does the existence of a copyrighted new expression of a “publically owned” story mean that story has been ripped from our culture like stolen flowers from a garden? Of course not.
Okay, but doesn’t copyright on original works somehow threaten the public domain?
This is a question suggested by all the free-culture panic over copyright term extensions. Recently, European copyright for performers and producers was extended from 50 years to 70 years, bringing it closer to the term for original authors, which stands at the life of the author plus 70 years.* Those opposed to such extensions criticized Europe for stealing from the commonly owned culture, because works whose copyright had lapsed were suddenly re-protected and therefore were not freely available in the public domain.
But, since when do we define our commonly owned culture as only that which we may all economically exploit? When I see a great movie or read a great book, must I wait until its copyright protection has lapsed before I recommend it to a friend or have a discussion about it in a classroom? Again, of course not.
Our common culture is both the public domain of unprotected works and those works that continue to have protection. What’s more, I’d be willing to bet that at any given moment in the past hundred years our common culture would be better represented by contemporary works under copyright protection than by the works in the public domain. People like new things. We may cherish old ideas, themes and even stories, but we want them to reflect in some way our contemporary reality. Copyright provides incentive for folks to continue to interpret contemporary reality with new works.
World renowned tenor Plácido Domingo welcomed the European term extension, making much the same point about strengthening our common culture I've just made:
"The decision to extend the term of protection for recordings in Europe is great news for performing artists. Artists at the start of their careers will benefit from an increased pool of revenue that will be available to invest in new talent. Established artists can benefit from their work throughout their lifetimes. This is especially important today when licensed digital services make music widely available online."
So, does copyright protection steal from the public domain? No, by expanding and strengthening our common culture copyright makes the public domain more relevant, richer and over time, ever larger.
Who is most concerned about the public domain?
Well, everyone should be concerned about it, since it is all of ours equally.
But these days, those most concerned with the public domain are…? Any guesses? Artists? Librarians? Teachers? Students? Kids who want to remix movies so that famous actors are saying funny things?
Wrong on all counts.
Certainly all those folks have concerns, but the folks most concerned with the public domain right now are extremely wealthy, privately-held, for-profit corporations who want to make a tonne of money from the “free” works in the public domain. Businesses like Google and Facebook and YouTube look at this vast parkland of collectively owned expression and they don’t see a garden – they see a content mine.
The keynote speaker at last week’s copyright conference, Dr. Silke von Lewinski warned that many of today’s free-culture alarmists spreading panic about copyright protection and the public domain are actually fronting for these free-content business interests. I think that’s true, but I think it’s also true that the panic has been contagious.
I invite artists, librarians, teachers, students and all regular individuals to question and re-examine what they’ve been hearing lately about threats to the public domain. Have we ever lived in a time of richer, more plentiful cultural expression? The public gardens are full and no-one is taking them away. We can afford to carefully license these spaces – in fact, it is the careful licensing and use of culture that gives us such a strong sense of collective ownership and pride about our culture.
Public park image courtesy... me! High Park is so lovely in the spring. Thank goodness for the regulated licensing of parts of it that helps to maintain the park for all of us.
*(thanks to commenter Pieter Hulshoff for the correction here)