Public Domain Matters

I recently reviewed Cory Doctorow’s book, Information Doesn’t Want to Be Free. Copyright is a passion of mine and I think this is a good opportunity to summarize my position on the matter.

For me, the single most important aspect of copyright is the public domain.

Most of the major copyright reforms over the past half century have made it a priority to prevent creative works from entering the public domain for as long as possible. On the other hand, there are many creative workers and educators of all stripes who depend on public domain materials to do their jobs—people who can’t afford to pay for usage rights to copyrighted stuff. This is one of the central conflicts of our copyright system.

When I was first taught about copyright, I was told that there were two equally important purposes that it was designed to serve:

  1. To protect the creator of a work—To prevent others from claiming someone else’s work as their own and to guarantee a creator fair opportunity to profit from their work.
  2. To generate a body of creative work that lies in the public domain—To provide the American people with a trove of cultural material that will benefit all of us.

When copyright law was originally created, the term of a work’s copyright was much shorter than it is today and the rights holder was only allowed to renew it once. The reason for these limits was to guarantee that all creative work produced by American citizens would eventually enter the public domain. Contributing work to the public domain was considered a civic duty, like paying taxes—it’s an obligation that all creative workers have to promote to the greater good of American arts and letters, to maintain a robust and healthy cultural trove for the country.

My understanding of the history of copyright is that the public domain—this civic obligation to the greater good—was originally considered equal to the need to protect the rights of creators.

Just about all of the major attempts to reform copyright have sought to reduce or eliminate this civic duty, to keep creative works out of the public domain for as long as possible, to void the obligation that the rights holder has to the greater good of society.

The public domain pillar has been largely removed from modern copyright law. I believe that this, more than anything, is the real problem we face.

We live now in a mash-up culture. Increasingly, artistic expression is built on repurposing existing works to make them into something new and different (I particularly like the section of Dr. Doctorow’s book where he talks about early hip-hop and the detrimental effect that present-day copyright enforcement has had on this music). In a mash-up culture, it seems to me that the ideal of the public domain—a shared collection of creative works that we all can use—is more important than ever.

It could be that my understanding of the purpose of public domain is incorrect. It’s possible that I was taught wrong when I first learned the history of copyright.

But my desire to see priority restored to the public domain dovetails neatly into Dr. Doctorow’s desire to see online copyright enforcement reformed to prevent the damage it’s doing to the Internet overall.

Both of us want to see copyright used to promote the greater good of all society. We want it to be something more than just a strong arm enforcement tool for corporate profiteers.

Increasingly, I’m convinced that our current problems with copyright law had their seeds planted when corporate entities were first allowed to hold intellectual property rights. Copyright was designed to deal with individual creators:

  • The length of copyright terms were calibrated based on the average lifespan of a person. Obviously, a corporation can outlive a person by long time.
  • It’s one thing for an individual to have a fair opportunity to make money off their labor. It’s a qualitatively different thing when intellectual property rights factor into the ongoing profit margins of a company.

That, fundamentally, is why I agree with Dr. Doctorow’s position: as he states, “Information doesn’t want to be free, people do.”

Copyright is supposed to be about people—an individual’s creative work, an individual’s freedom to consume creative work at a fair price, and the benefit that all of us gain from the collective creative efforts of the American citizenry.

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