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.
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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)
29 comments:
Good metaphors John. You oughta write a book. Oh, that's right...you do that too!
I'm sorry I missed the keynote on Friday. The relationship between the new media giants and the copyleft crowd is obvious once it is pointed out.
Works in the public domain generally spark a whole new set of works. Just think for example of all the works based on the stories by Dumas on the Three Musketeers.
So, what happens if you take a work in the public domain, invest a lot of money to base a movie on it, and suddenly it's retroactively put back under copyright control? Hope you can license a deal with the copyright holders for a decent amount? Good luck with that! Extending the duration of copyright, already way beyond any reasonable bounds, takes away from the public, especially if that extension is retroactive.
I know you love to talk trash on companies like Google, but truth of the matter is that they're not doing anything to those public domain works that you could not do yourself. They invest a lot of money building a service, making the works more accessible. Certainly, they expect to get paid for that work and that service, but that's not too much to ask, is it? After all: if you don't like it: you could do it yourself. The works are in the public domain after all.
OMG, I've never seen such convoluted argument for extending copyright. It sound like you are saying that by extending copyright protection we would in fact be improving the quality of the public domain.
I do agree that once the abomination called C-11 is passed, this will be the next fight. The US, Europe and many other jurisdictions have already sold out to the corporate pirates, and given away another 20 years of monopolies. There will be a lot of pressure for us to do the same.
Let's hope we can resist long enough for the others to come to their senses and start undoing the damage they have done.
I agree that we live in a time of richer, more plentiful cultural expression, which is precisely why no further extension of copyright is needed.
It's a solid argument
Sandy,
Since you like the posting, maybe you could click the "recommend" button at the bottom of it and spread it around Facebook. All your friends should re-examine the panic around public domain.
Pieter,
I know, free-culture likes to imagine the worst possible scenario and generalize every situation to it. So, grandmothers go to jail for the file-sharing of their grandkids (never actually happened), and now movie producers are left in the cold after a term extension. Well, I like to deal with real, nuanced law, and I'm sure if any producers were actually caught in that situation, they have a strong case for continuing with their project. Silly potentialities are not good reasons to make bad laws.
Darryl,
Keep resisting the corporate pirates. OMG. LMAO. GOOG.
Gruesome,
You've misunderstood, probably on purpose.
Okay, now to finish making dinner for the kids. They can't enjoy our rich common culture on empty stomachs, can they?
GOOG?!?
OMG, now your whole post makes so much more sense. Listen, you really should go easy with that ecstasy stuff, and please don't let the children go anywhere near it.
@John "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..."
Holy cow! How did you find out I get a check from Google every time I post here?
0_o ... Now who is sipping the conspiracy Kool-aid?
Crockett,
I'm pretty sure Dr. Silke von Lewinski wasn't thinking of or refering to you when she made her comments, and neither was I when I wrote this rumination on the public domain.
For the record, you don't post here; I do. What you do here is misinterpret and reword my posts in an attempt to clog my comment section with free-culture nonsense.
@John "So, grandmothers go to jail for the file-sharing of their grandkids (never actually happened)"
Hmm, never heard of that one before, got a link for it?
Speaking of grandmothers, remember this one ...
http://betanews.com/2005/02/04/riaa-sues-deceased-grandmother/
I'm sure this was just a laugh for the family.
__
Or how about million dollar lawsuits for a dozen or so uploaded songs?
http://blogs.computerworld.com/riaa_sues_joel_tenenbaum_for_4_5m_in_p2p_trial
Good to see proportionality is force here.
__
How about out of control copyright trolling ...
http://arstechnica.com/tech-policy/news/2011/09/copyright-troll-righthaven-goes-on-life-support.ars
Good to see at least some new business models out there!
__
Of course none of that could happen here in Canada, so there is absolutely nothing to worry about.
You can now relax and go back to having your ears tickled John.
"Recently, European copyright was extended from the life of the author plus 50 years to the life of the author plus 70 years....
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. "
John appears to be confusing public domain with fair dealing. No surprise.
Of course you don't have to wait for copyright to expire to do any of those things John, but you do if you want to create your own works based on other works. Or you have to find and negotiate a deal with the author, which as we all know can be a time consuming and expensive proposition, and will remain so until we get some reasonably sane and simple copyright rules. (I.E. forever)
Want to create your own Grey Album? Forget it.
Want to create redacted versions of movies for sensitive audiences? Forget it.
What to create your own fuzzy Doctor Who (TM) knitted characters?
Forget it.
Want to create your own trivia book about copyrighted characters?
Forget it.
The list is endless.
The longer your give copyright holders power to either force payment from followup creators or worse, veto the new works, (beyond the bare incentive needed to create the works in the first place) the more our common culture will suffer.
To try to state the opposite as you are doing is beyond lunacy, and is surprising to hear. Even from you.
"Recently, European copyright was extended from the life of the author plus 50 years to the life of the author plus 70 years."
I almost missed this one, thanx Darryl. :)
This didn't actually happen. What happened was that neighbouring rights (you know: when you record someone else's song) were extended from 50 to 70 years (no post-mortem either). The Netherlands voted against this proposal. Please get your facts straight John.
This was done against the explicit advice of economists and several studies (e.g. the Gowers report and the IVIR report), some of which even commissioned by the EC. All evidence however was tossed out, and replaced with a Johnish view of how this would benefit artists, even though the reports clearly stated that the economic value increase of a work would be practically 0 when you extend copyright beyond the long duration of what it already was.
Considering the cost of preservation, it will most likely mean that a lot of cultural material will be lost before it can be preserved. We've lost quite a bit of our old movies and audio recordings already that way.
So, how can this increase the amount of money artists make? It can't, at least not unless people suddenly start spending more money on music and movies. Otherwise it's just a shift of money from new artists to old artists or as it is in most cases: the recording studio. That sounds like a wonderful reason to keep works out of the public domain for another 20 years...
Honestly John: you've outdone yourself with this post. Arguing that extending copyright is good for the public domain is so wild that I never thought you'd get that deluded.
Ah, found the speech by Thomas Macaulay on this topic: http://www.baen.com/library/palaver4.htm
1841 ... history repeats itself, doesn't it? Looking at the last paragraph, I can only conclude that history has proven him right:
I am so sensible, Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.
If there is such cultural abundance what could we possibly need an extension of copyright for?
Pieter,
Thanks for the correction. Of course Life + 70 years is the standard term for authors under European copyright, a term which raises the ire of the Darryls (and Pieters) of the world, so my point remains the same.
As to my being deluded, let me quote from the magnificent Plácido Domingo about the recent term extension for performers and producers to 70 years:
"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."
I saw Mr. Domingo perform in Toronto this past summer. I'm just going to go ahead and assume he knows a LOT more about the music industry, being a professional performer, music fans, and his own rights than either you or Darryl.
Thanks for the speech. It beautifully illustrates that fanatical anti-copyright panic-spreading was not invented by the recent free-culture crowd. Y'all have certainly learned it well, but I think Darryl and Crocket might need to update their terrifying copyright bedtime-stories a bit. "And then they sued her corpse!, booo hah ha ha!"
The speechy dude makes a great point. Imagine how much better a world this would be if we'd all had access to Robinson Crusoe and Pilgrim's Progress. Oh wait, we all DID have access to those great works.
Panic over. Thanks for supporting my points.
"a term which raises the ire of the Darryls (and Pieters) of the world"
Well, us, and practically everyone else who isn't thinking they'll benefit from 20 years of extra protection.
"The decision to extend the term of protection for recordings in Europe is great news for performing artists."
The man just got offered to be paid 20 extra years for singing songs written by others. What did you expect him to say? I don't hear him saying we should extend it another 500 years so he'll have to pay the ancestors of the composers whose music he's singing.
"The speechy dude makes a great point."
He did, but as usually you're blind to the point he was making: if you keep expanding copyright to the detriment of the public, the public will turn against you. How much support is there for copyright among the population now, John?
Pieter,
Your technical correction has been noted in the body of the posting. Thanks again. It allowed me to add Domingo's comment as well, so I think the whole post has been strengthened. Much obliged.
What's that? Oh, I think there's immense support for copyright. When people are presented with facts rather than panic, the logic of copyright is indisputable.
"Oh, I think there's immense support for copyright."
Ah, so that's why the general population is massively infringing on copyrights, and political parties like the Pirate Party are gaining momentum, such that we need $150k fines per infringement ($1.5M for a 10 song cd, as opposed to $1k for stealing the thing) and disconnect people from the internet without due process. Keep up the good work, John. You won't have any support left in no time. :)
John your delusion is breath taking, but lets play along with it for a while and see where it goes.
If it is good to increase copyright protection for recorded music to life+70 as the EU has done, perhaps it is better increase the term of copyright to life+100 years as Mexico has done. Keep increasing that pot don't you know. If Life+100 is better, perhaps life+120 or 200 is better still.
You make your case for the virtue of expanding copyright. The very same argument could just as easily be used to justify perpetual copyright. There is nothing in your argument that would justify any limit to copyright.
I'm not going to ask you what you think the limit should be for copyright. I'm sure you would find some way not to answer that question at all. Instead I would like to know what you consider would be the factors which would make a limit on copyright desirable in the first place. Is there any justification for limiting copyright protection in the first place? If so what is it, and how should it be considered so as to arrive at the optimal copyright term?
I realize these are deep question which would expose far more of your ideology than you probably want to reveal so I will understand if you either ignore or side step the question.
@John "Crocket might need to update their terrifying copyright bedtime-stories a bit. And then they sued her corpse!, booo hah ha ha!"
I'm glad to see you are getting into the spirit of the season John. You did neglect to address the more serious examples of disproportionate remedies, trolling and other abuses of the legal system in the pursuit of copyright 'redress'.
You're latest catch phrase of the 'panicked free culture crowd' is a poor attempt to gloss over the serious concerns that are being raised. I'm not sure if you're blindly ignoring these or you just don't care.
Either way, quite a few people, including all parties (other than the 'culture supporting' conservatives) in the legislature are concerned as well as a significant number of organizations who really do work in the REAL world with REAL issues.
Bringing these concerns to bear is not panic John, you're cheap use of the term though I think reflects more so on yourself.
Well sure Crockett.
He also seams to have neglected to address the difference between pubic domain and fair dealing, (arguing about public domain using examples of fair dealing).
There is also his praise for what Thomas Macaulay says without actually addressing what he says (which entirely counters his own point)
And then of course there is my last challenge to him to present some rational for any limit at all on copyright or admit that what he really desires is perpetual copyright.
Honestly his house of cards which he tries desperately to present as a reasonable argument is looking about as precarious as it ever could.
Why doesn't John ever address the arguments, blah, blah, blah.
Guys, I write a frickin' blog on copyright, several times a week, while doing a full-time job (with many, many overtime hours) in which issues of real world copyright are a daily discussion. In my off-time, I am a professional creator, working at a high level in a copyright-structured sector of the economy. I've been to more copyright-focused high-level discussions, conferences and meetings than all of you combined, at which I have never been shy about asking questions, speaking my mind and defending my ideas.
What the hell do you do?
Darryl, in particular, has been hanging out on this blog asking the same questions and using the same tired examples and arguments for close to five years now. The question he just asked, I've probably answered in detail about six times.
Shall I do so again? Okay, as long as a work has continued economic value, I see an argument for privileging the original creator (and her heirs) as the rightsholder. Works are property and should be treated as such under the law, and their regulation through copyright, as long as it is carefully done, does NOT steal from common culture, it adds to it. That is my opinion, expressed yet again for Darryl.
Wait a few months and he'll ask for it again.
Crockett, as well, loves to ignore the many times I have expressed a happy willingness to have the law demand proportionality. I actually cannot remember how many times I've said that a notice and takedown system would work best combined with legal penalties for notice abuse. Many, many times.
The panic I refer to, and which you both so perfectly illustrate is the free culture penchant for creatively "not seeing" reasoned positions in the cultural sector and instead flinging out the same tired old examples from the extremes. Good lord, no-one has mentioned Sousa today. What's wrong with you guys? Are you feeling okay?
Pieter, I'm afraid, is a total mystery to me. Anyone who defines what is happening with the pirate party's political activity as "gaining momentum" has a very loose grasp of pragmatic reality. Perhaps if he ever chose to leave the sauna (or whatever that is he's sitting in) he'd get a sense of how ridiculous such a claim is in the real world.
"I've been to more copyright-focused high-level discussions, conferences and meetings than all of you combined"
That's quite a statement, considering I've been doing political lobbying on copyright for about 11 years now. I believe Russel's also been quite active in that regard.
"Okay, as long as a work has continued economic value, I see an argument for privileging the original creator (and her heirs) as the rightsholder."
Ok, at least that's clear. :) Considering that Domingo's making quite a bit of money performing works that are out of copyright, you do feel that the heirs of the composers should get paid for it. Somehow I doubt Domingo would agree, but at least your position is clear.
"Pieter, I'm afraid, is a total mystery to me."
Woohoo! I'm a mystery! :)
"Anyone who defines what is happening with the pirate party's political activity as "gaining momentum" has a very loose grasp of pragmatic reality."
I can tell you're not impressed by the Pirate Party making it to the EP, nor by the PIRATEN gaining 15 seats in the Abgeordnetenhaus of Berlin, nor by the Green parties taking over the Pirate Party line on copyright. You also don't agree with the RIAA/MPAA party line that a large part of the population is engaging in copyright infringement. It must be very quiet in Johnland...
The weird part is that I'm actually sad that there's so little respect for copyright, and that it won't improve with people like you calling for yet another expansion of copyright. Copyright is very important to me; I hate seeing the people's respect for it destroyed by extremists like you.
"Works are property and should be treated as such under the law, and their regulation through copyright, as long as it is carefully done, does NOT steal from common culture, it adds to it. That is my opinion, expressed yet again for Darryl."
Don't mean to interpret what you've said here but it would seem that you would support perpetual copyright?
ie The copyright would be handed down one generation to the next like physical property
A little clarification please.
Honestly, it's like blogging to a brick wall. You've wasted more than enough of my time guys. Read what I write. Do some work to understand it. You may also be interested to know that when asked about copyright terms at a PWAC conference years ago, Michael Geist said almost exactly what I just did about continued economic value.
Pieter, I've been professionally active on this file since 1990. I think that covers you, Russell, Darryl's two minutes of actual attention paid to the subject in 2004, and anyone else you'd care to mention.
It's very telling that you would paint Placido Domingo as greedy. You think a man whose enormous talent is personally responsible for improving the incomes of probably thousands of cultural professionals and who speaks out publicly for strong copyright protection would begrudge a copyright holder her royalties? I repeat ... loose grasp of pragmatic reality!
You're absolutely right, I'm not impressed by the Pirate Party. When they do something impressive, ask me again. I won't hold my breath.
"Honestly, it's like blogging to a brick wall. You've wasted more than enough of my time guys."
Hey, you wanted a blog; you've got a blog. :) According to you the general public is really fond of copyright, so you should have no trouble finding tons of supporting commenters...
"It's very telling that you would paint Placido Domingo as greedy. You think a man whose enormous talent is personally responsible for improving the incomes of probably thousands of cultural professionals and who speaks out publicly for strong copyright protection would begrudge a copyright holder her royalties?"
Not greedy; just misinformed. :) I'm actually fond of mr. Domingo's music, and although I don't personally know the man I'll happily believe he wants the best for artists. I think several of your commenters, including myself, are proof that you can be in favour of strong copyright protection without wanting it to cover everything and the sun, and lasting forever minus a day.
Really John, I've just asked for clarification, it sounds like you support no limit on copyright.
I'm just curious, if that's not true, what do you think an appropriate limit would be?
I mean mickey mouse might still be quite valuable 500 years from now, should we extend copyright protection that far?
Indeed Gruesome, it would appear that in some cases at least John would support perpetual copyright.
I don't know about that retched mouse, but Shakespeare has certainly proved his worth over 400 years on. Perhaps I am putting words in John's mouth, but it sounds very much like he believes that the heirs of Shakespeare at least have some sort of moral claim to his work, and that he believes they should have a legal claim as well. Anything else would be inconsistent with his stated position.
Please John clarify your position and show me that I am wrong, if that is indeed the case.
I wonder if he would support the mandatory global registration system needed in order for such a system which uses "economic worth" as the measure of copyright duration, to work. Either that or "economic worth" is merely code for perpetual reasoning that if it has no worth, then no copies will be made. Therefore all copies ever made should forever be controlled by copyright. Yes, some clarification would do well here.
Darryl,
As you know, I don't want to erase comments or ban commenters here, but that doesn't mean I have to put up with incessant idiocy and disrespectful blather. So here are some new rules:
When you have fresh material, you're welcome to try and engage me. I figure that pretty much excuses me from you forever.
If I sense two or more of the free culture players are using my real estate to put on a show, I'll ask you to leave. If you don't leave, I'll stop publishing your comments until you can figure out how to treat my digital home with respect.
For now, Darryl, you're over the line. Gruesome, Pieter and Crockett, you're on notice.
Gruesome, "perpetual" copyright is one of those panicky free culture extreme scenarios I've been referring to. If you can't figure out my position on terms from what I wrote earlier, I can't help you any longer.
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