Why the Public Domain Matters
Why care about the public domain? How does it matter to you? Below are only a few examples of activities enabled by a robust public domain. In Europe you will be able to engage in these kinds of projects, and more, with the wealth of material entering the public domain on January 1, 2012. In the US, under the law in effect until 1978, you could do all of this with works published in 1955 (and, because their copyrights would not have been renewed, with an estimated 85% of the works published in 1983). But now everything published from 1923 onward is presumptively copyrighted and off limits, even though the vast majority of these works are no longer commercially valuable and no one is benefiting from continued copyright protection. And the public domain is shrinking just as digital technology puts the tools to do the things below at all of our fingertips, empowering the millions who could collect, restore, and build upon our cultural heritage.
Artists of all kinds — writers, musicians, filmmakers, painters — rely on the public domain: “Poetry can only be made out of other poems, novels out of other novels,” as the critic Northrop Frye put it. Creators draw on previous works, and on the cultural artifacts around them; they remix vintage footage with new clips, turn books into plays and musicals, borrow lyrics and melodies from old songs, adapt classic stories to present day circumstances. For example, in the past year, you may have enjoyed the movies Gnomeo & Juliet, Red Riding Hood, or The Three Musketeers — these 2011 films reinterpreted public domain works by Shakespeare, Charles Perrault and the Brothers Grimm, and Alexandre Dumas. Or your children may have been transfixed again by Disney’s beloved Snow White, Pinocchio, and The Little Mermaid, which are based on public domain works by The Brothers Grimm, Carlo Collodi, and Hans Christian Anderson. As Judge Richard Posner observed, if the underlying works were copyrighted, “Measure for Measure would infringe Promos and Cassandra, Ragtime would infringe Michael Kohlhaas, and Romeo and Juliet itself would have infringed Arthur Brooke’s The Tragicall Historye of Romeo and Juliet . . . which in turn would have infringed several earlier Romeo and Juliets, all of which probably would have infringed Ovid’s story of Pyramus and Thisbe.” The creative fruits of the public domain are all around us. (You can read more about the cumulative nature of creativity in this amicus brief from Eldred v. Ashcroft, and read more about how musical creativity depends on the public domain in “I Got a Mashup” from The Public Domain.)
Libraries, museums, historians, archivists, teachers, filmmakers, publishers, and database creators rely on the public domain to collect, preserve, and teach us about our past. Anyone can freely restore and digitize works published before 1923, but far too many projects have had to abandon works published after 1923 because of the extraordinarily long copyright term. Libraries avoid digitizing important resources, archives and databases are incomplete, important historical images are redacted from documentaries, museums cannot publish or digitize millions of pages of archival documents, photographs, oral histories, and reels of film (as the US Copyright Office has explained), all because the copyright ownership of these orphan works cannot be determined.
The case of film preservation is particularly troubling because older films are literally disintegrating, soon to be lost forever. The overwhelming majority of our cinematic heritage consists of orphan films — they are covered by copyright but have no ascertainable copyright owner. They include newsreels, documentaries, anthropological films, portraits of minority life in the United States, instructional films, and even some Hollywood studio productions. Because copyright law prevents scholars and citizens from using these orphan films (including copying and restoring them for preservation), the existing copies are actually disintegrating. This is because the cellulose nitrate base on which they were made makes them prone to shrinkage, to outgassing that destroys the film’s emulsion, and even to spontaneous combustion. The vast majority (upwards of 90%) of films from the 1910s have already decayed beyond the possibility of restoration. The numbers are only slightly better for works from 1920 to 1950. And the number of orphan films is staggering. Of the 13,000 films housed at the Museum of Modern Art, over half are orphan works unavailable to the public. Vast numbers of the 150,000 titles held at the Library of Congress and the 46,000 tiles at the UCLA Film and Television Archive are also orphan films. (For more information, see the 2005 Report on Orphan Films submitted by the Center for the Study of the Public Domain at the invitation of the Copyright Office.)
The problem does not only affect films. In 2001, the American Historical Association (AHA) decided to create a freely available online collection of Civil War newspaper editorials, using two volumes originally published by the AHA in 1931 and 1942. AHA staff quickly discovered that no copyright renewal was ever filed for the second volume, edited by Harold C. Perkins, and it subsequently had entered the public domain. However, the editor of the first volume, Dwight L. Dumond, had renewed the copyright in his own name in 1959. AHA staff confirmed through obituaries that Dr. Dumond had passed away in 1976 and had been survived by his wife and two children. The staff then consulted with Dumond’s former colleagues, university libraries, Masonic lodges (to which Dumond had belonged), and veterans’ associations (since Dumond had fought in World War I) in attempts to locate his heirs. Finally, when the staff contacted the Washtenaw County Probate Office to request a copy of Dumond’s will, they discovered that his financial effects had been ceded to a now defunct trust company (which would presumably have controlled any royalties generated by the book). The AHA eventually abandoned the project after determining that it couldn’t guarantee protection from infringing upon the possible copyholder’s rights: “Despite considerable expense and effort, we were unable to make available work that is only of historical and scholarly, rather than commercial, interest.” (Edited excerpt from comments on orphan works by the American Historical Association to the U.S. Copyright Office, March 25, 2005.)
You can read more about the current costs associated with orphan works in The Chronicle of Higher Education’s “Out of Fear, Colleges Lock Books and Images Away From Scholars” and the American Bar Association Journal’s “A Trove of Historic Jazz Recordings Has Found a Home in Harlem, But You Can’t Hear Them.”
Making Education More Affordable and Interactive
An introductory college course on modern political thought will usually include well-known works like Machiavelli’s The Prince, Hobbes’s Leviathan, Locke’s Letter Concerning Toleration and Second Treatise on Government, Rousseau’s Discourses and Social Contract, and Mill’s On Liberty. The specific content of the course will vary, but most of these writings will make an appearance. Each of these works exists in the public domain. The full texts are available online for free. If you wanted to have hard copies of the texts, you could purchase widely reputable versions of all seven texts through Hackett Publishing for a total of less than $50. And it’s not just cost – because these works are in the public domain, teachers can freely translate, annotate, combine, adapt, or excerpt from them to create new educational resources, and publish them online for others to use.
The readings for an introductory course on contemporary political thought will vary more, but they might well include Rawls’s Theory of Justice and Political Liberalism, Nozick’s Anarchy, State, and Utopia, Sandel’s Liberalism and the Limits of Justice, Walzer’s Spheres of Justice, Habermas’s Between Facts and Norms, and Okin’s Justice, Gender and the Family. Each of these works appeared within the last fifty years and remains subject to copyright restrictions. You will not find them freely available online. You might be able to shop around and find used copies. But if you buy them new (even at a bargain on Amazon), you will be out more than $170. And, because these works are copyrighted, you cannot post your extensively annotated compilation of them online without worrying about numerous possible lawsuits.
Under the Copyright Act of 1976, all works of the federal government are part of the public domain. This includes legislation, regulations, legal opinions, hearings, and all sorts of other information about how our government operates and what it produces. Efforts are currently underway to make all of this information searchable and accessible online. For example, the organization public.resource.org is designing LAW.GOV, a repository for all primary legal materials of the United States. Among other things, this includes court decisions previously accessible only through the “rich man’s Google” of “high-priced commercial services such as Westlaw and Lexis-Nexis.” One of the goals of the online repository for legal materials is to supplant the government’s PACER website, which charges for access to federal court filings. Read more about efforts to make all primary legal materials of the United States readily available to all citizens here.
“Copyright law has succeeded in silencing what segregationists could not.”
Academic researchers can freely use public domain material, but what happens when their research requires copyrighted material from as far back as the 1930s? Consider Dr. Kate Sampsell’s dissertation, “To Grab a Hunk of Lightning”: An Intellectual History of Depression-Era American Photography. During the course of preparing her manuscript for publication, Dr. Sampsell sought to track down copyright owners of documents supporting a 1932 book that exposed “the horrors of the chain gang for African Americans in Georgia.” The amicus brief of the College Art Association and other organizations supporting the petitioner in Eldred v. Ashcroft explains what happened: “The repository holding these materials would not allow her to have copies of written materials and images even for her own use, much less for publication. Some of the materials, in fact, were taken from the Georgia Bureau of Prisons, which wanted them suppressed. Before the [Copyright Term Extension Act], these materials would have fallen into the public domain within a few years from now. Copyright law has succeeded in silencing what segregationists could not.”
NOTE: Many of the activities highlighted above depend on access to works whose copyrights have expired. The public domain also includes material that is not protectable by copyrights at all, such as ideas, facts, and genres — these are also crucial building blocks for creativity and progress. In addition, many important activities such as criticism, commentary, news reporting, and limited quotation depend on fair use, which allows you to use works that are still protected by copyright (and not yet in the public domain) under certain circumstances.