|
VRA / NINCH
San Francisco
Copyright
Town Meeting: April 2000
Making the
Public Domain Public
a paper by
presented 4/5/2000
revised 4/28/2000
Published in the VRA Bulletin
Part I: Public Domain
Perceived
Part II: Public Domain Received
(Sections of Part II delivered at Town Meeting.)
See also
"Reconstructing the Public Domain"
a paper based on remarks presented at the
NINCH/VRA/ARLIS Town Meeting
March 2002, St. Louis
Part I:
Public Domain Perceived
This paper is about the public domain; but it is not so much
about the Public Domain as a legal construct, as it is about the
public perception of the public domain, and about issues that
arise when attempting to use it. The paper, accordingly, is
divided into two parts, 1) the public domain perceived and 2) the
public domain received.
There is some justification
for discussing the public domain as a construct of popular
perceptions. Until the inclusion of the DMCA[1]
into the US copyright code, the term "public domain"
was not mentioned once; in fact, there is no definition of the
public domain in current U.S. copyright statutes. As we will see,
"public domain" has a number of distinct and
overlapping meanings –– and these meanings tend to
reflect differing agendas. At this very moment the meaning of
"Public Domain" is being argued on the CNI-COPYRIGHT
discussion group. I recommend you tune in.[2]
* * *
As everyone knows, one of the most zealously guarded
properties of our times is Intellectual Property. The prospect
that an owner of Intellectual Property can reap renewable rewards
beyond personal effort has helped invent a culture that must
erect ever more impenetrable boundaries of copyright, licenses
and encryptions to safeguard its intellectual property
possessions.
Those among us who are academics generally believe that the
legislative provision for the exercise of "fair use"
provides means by which such walls (under certain limited, but
unfortunately diminishing, conditions) may be breached. Yet, we
have become painfully aware of the degree to which owners
interpret what seems to us to be reasonable and just uses of
their intellectual property as illegal intrusions.
The history of these Town Meetings documents the
role that copyright holders have taken in attempting to limit and
confine the practice of fair use. Earlier today we learned about
schemes employed by holders of works now in the public domain to
prevent the public from obtaining access to this property
–– in effect, by creating miniature monopoly stakes in
the distribution and licensing of images.[3]
From the point of view of public policy,
"fair use" and the "public domain" are
closely related concepts. Fair Use offers a way to over-ride the
rights of the holders of intellectual property –– when
it is in the public interest, of course. Similarly, the passage
of works into the public domain secures, on behalf of the public,
intellectual properties that once were private. In other words,
both "fair use" and the "public domain" exist
so that all works, both past and present, serve and benefit the
public and society. Each exists to counterbalance the weight
given to the right of exclusive temporary ownership. Herein lies
the guiding principle of our copyright law. Both copyright and
lack of copyright bestow a set of rights.[4]
While the "public domain" projects itself as a legal
construct, there is no statutory definition of it. From one point
of view, the public domain is that state in which an intellectual
property exists when there is no copyright claim on it
–– meaning that nobody can prevent you from using the
work. But does this mean that there are no corresponding public
rights that are engaged at the moment of the loss of copyright?
As a matter of principle, does the public own a set of rights
that balances those of the copyright owner –– fair use
being one, right to the public domain being another? This other
perspective is expressed in a recent post to cni-copyright. Eric
Eldred notes
... copyright doesn't mean the right to
deny others rights to copy, but rather registers
"ownership" or a bundle of rights to specific
creative expression, including copying, making derivative
works, publishing or not publishing, and so on. But if this
"ownership" concept is okay, then why not go on to
assert that the "public" has certain rights (fair
use, etc., etc.) that are implicit in the creation and
publication of any creative expression, copyrighted or not,
...
In some ways this abstract argument about the "public
domain" is similar to the "right to privacy"
arguments. There may be no specific Constitutional or
statutory basis for such a right. But [as] some have argued
... such rights "exist" and ... it is NOT
meaningless to discuss them. [Look at Amendment IX in this
context, which states that] "The enumeration in the
Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people."[5]
In the context of these polarities, it is understandable that
the "public domain" has developed a number of popular
meanings. Below, I have abstracted several of these popular views
or constructions of the public domain. They are presented here
metaphorically. Readers should note that these metaphors are
vehicles of convenience; they are not real.
- The Public Domain of Copyright Owners.
In this model, when claims of ownership
expire, creative or other works protected by copyright
are said to "fall" into the "public
domain." Note the use of the word "fall."[6] We use this phrase so frequently we
have become immune to its implications. It is used to
imply that a work's status has decayed, and gives the
impression that it has passed into a lower level of
existence, one with less potential. Under this
definition, extension of the period of copyright is a
resuscitation or first aid. Extending copyright elevates
the status of a work and provides added opportunity to
exploit its value. In this model, the importance of a
work is closely linked to its economic worth. One value
proves the other.
From this perspective the public domain is a kind of city
of the dead, a necropolis –– where vital works
are forced into premature retirement or where old works
go to live out their declining unproductive years. Here,
works have either been retired too soon or (with marked
exceptions) are no longer believed to have sufficient
economic value to be worth exploiting.
This is the kind of domain from which
the recent Sonny Bono Copyright Term Extension Act is
carved. The September 1995 report of the Working Group on
Intellectual Property Rights (generally understood as a
document representing the positions of copyright holders)
explains that "when the term of protection for a
copyrighted work expires, the work falls into the
public domain." (Emphasis added.)[7]
The New York Times, in a 1998
editorial written in opposition to the Sonny Bono
Copyright Term Extension Act, picked up the significance
of the use of the phrase "fall into the public
domain:" It states that "When Senator Hatch
laments that George Gershwin's 'Rapsody in Blue' will
soon 'fall into the public domain,' he makes the public
domain sound like a dark abyss where songs go, never to
be heard again. ..."[8]
Every assertion implies its antithesis. Thus, on one side
we find Mary Bono, who, sponsoring the Copyright Term
Extension Act as a tombstone for her late husband,
believes that copyright should last forever. In her view,
it would seem that the public should have no dominion.
And on the other side, we find Mario the Postman (from
the movie Il Postino based on the book by Antonio
Skármeta) who proclaims that "Poetry belongs to
those who use it, not those who write it!"
- The Public Domain as a state of nature.
A second kind of public domain can be inferred from a
literal reading of the intellectual property statute
imbedded in the Constitution of the United States. It
says: "The Congress shall have power ... to promote
the progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive
right to their respective writings and discoveries (Art
I, Section 8).
The Constitution, of course, is not defining a
"public domain," as much as it is creating a
zone of protection for authors and inventors without
which all works would, in default, reside in an
unprotected state. To some people this
"unprotected" area signifies or represents a
kind of primordial domain that precedes copyright
–– a garden of Eden whose fruits are available
to all. In other words, this "public domain" is
not so much a creation of law as much as it pre-exists
law. It is a lawless domain; being lawless, it also
awards no rights. This public domain is a mythologized
idealization, like our myths of a golden age; while it
doesn't exist, it informs the way people think about the
public domain. Here, government has no dominion.
But government exists, and as soon as
government gives rights –– copyright, the
limited right of ownership –– the idealized
bubble is burst. To give a right is to take a right, and
to take a right implies that rights exist to be taken.
The public domain of real life is the consequence of the
"big bang" of the invention of rights. Even if
from the perspective of this government-sanctioned public
domain, the period of copyright is a temporary ripple
–– a momentary disturbance of an ideal state
–– that state has been indelibly altered.[9]
- Functional Public Domains
For some people, every work, whether it be in copyright
or not, functions as if it were in a public domain. This
is how United States intellectual property is often
viewed from the vantage point of China or Africa, or (for
balance) how European writings were seen in the
nineteenth century from across the Atlantic Ocean. Or
when there are no International Intellectual Property
treaties. Indeed, cultural and economic needs fashion
"functional public domains" out of erstwhile
protected properties. Thus, in common parlance, when
something is said to be in the "public domain"
it can simply mean that copyright holders have lost
control of their holdings –– as when works are
posted on the Internet and are considered ripe for the
plucking. One hears asked: "If I place my work on
the Internet, does it get LOST to the Public
Domain?" Some people fear that accessibility is
equivalent to loss of rights; for all intents and
purposes, they may be correct.
These examples, then, would constitute
a third public domain –– equivalent to what is
sometimes called "market failure" ––
the inability to control one's holdings. The Software
Publishers Association had a less relativistic
terminology for users of this "public domain:"
They call them "thieves" and
"pirates." (The word, "infringers"
doesn't seem to have the same cachet.)[10]
Or, it can mean that the copyright holder has willfully
abandoned his copyright claim. But, because the public
domain is not a legally sanctioned entity, public domain
status can only inferred. One cannot transfer rights to
the public domain. Indeed, it would seem that heirs can
nullify such abandonments simply by exerting their legal
claim. "Copyleft" is a scheme by which
individuals keep copyright but dedicate works for free
unencumbered use within stated limits.
We think of intellectual property law as a delicate
balance of rights; but, there is also built within it a
perpetual paradox. The paradox of intellectual property
is this: For the rights-holder it creates a monopoly
interest in a work that enables the production of
continuing income with no continuing creative input; but
for the unfazed user, it allows for a taking with no
corresponding loss. Infringement issues aside, the
"virtual public domain" created in this way at
first serves to level states of unbalanced technological
and economic development and then helps create new
markets. Controlled theft and ignored infringements may
be good for copyright owners –– that's the
paradox. I guess there are good pirates and useful
thieves.
To the academic, while, officially classified as fare for
potential "fair use" the entire world of
copyrighted works is also treated as if it were a public
domain, but a public domain in potential.
- The Free Range: The Public Domain of the Old West.
This fourth Public Domain is a domain of conflict, and in
some ways is the consequence of people acting out the
presumptions imbedded in the public domains defined
above. Metaphorically, it presents itself as a
uncultivated wilderness where all properties contained
within its boundary are available for public use or for
private development. While this domain appears not to be
owned by anyone, and everyone is supposed to have equal
rights to it, in fact it is administered and sanctioned
by government, sometimes actively, sometimes passively.
Unsurprisingly, rights to use and rights to access often
conflict with each other. This is the public domain of
Constitutional or governmental creation of rights.
If we don't push the analogy too far, this domain seems
analogous to the "free range," of so many
Westerns of the 1940s and 1950s –– a domain
where the landscape is a battleground that pits ranchers
against farmers, Indians against settlers. In the movies,
the ranchers use the free range as a public resource, a
place where all cattle may graze in common on unowned and
unmanaged land and may suffer no harm or interference. As
in the Old West, this public domain is given in part to
homesteading farmers who fence in the range and claim its
benefits as their own. From the cattlemen's point of
view, the farmers are privatizing a public resource.
These dramas of the 1940s and 1950s contrast the virtues
of private ownership and individual enterprise to the
rough dictatorship of the rich cattle barons who needed
the range to be public property. In the movies the
cattlemen usually are gangs of thugs whose job it is to
intimidate the farmers and their families in an attempt
to get them to move out. Erecting fences of barbed wire
to keep grazing cattle away from cultivated fields is the
counterpart to modern-day copyright protections and
government-sanctioned encryption.
In their day, such films were little more than
pro-property morality plays (with love-interests to make
them palatable). It should surprise nobody to discover
that in these films the studios nearly always sided with
the farmer-property owners –– as they now take
the side of copyright owners in the name of protecting
individual creators. Progress meant the range was to be
settled, just like the state of being in copyright is an
advance over loss of copyright as it "falls"
into the public domain. In such an atmosphere both
"fair use" and the "public domain"
are species of "market failure."
Drawing from this perspective, today we see our own
"public domain" being divided into areas
accessible to the public and areas held back from the
public. Works that would ordinarily be in the public
domain have become enmeshed with private property claims,
rights of publicity claims, licensing, contracts,
shrink-wrap contracts, intimidations, arcane claims of
copyright, or entangled within other efforts to grab
control of what would otherwise have been accessible
under copyright.
Examples:
č A painting in private
hands or in the hands of an institution that treats such
property as its own, as Kathleen Butler has just shown
us, in the name of private ownership, is effectively
removed from public access and is treated like a piece of
private turf.
č Control of this private
turf is enabled by using contracts, licensing and
encryption to prevent legal access to copyrighted items
and to the public domain.
č Efforts to show that
singular works created centuries ago –– the
Rubenses, Rembrants and Raphaels –– are not yet
in the public domain because they have not met the formal
requirement of "publication" as stipulated in
US Copyright Law, appear to be efforts to whittle at the
borders of this realm. Unpublished manuscripts of any age
are given unusual protection as well.
č The Copyright Term
Extension is an attempt to forestall works from entering
the public domain.
č Some items are never
allowed to mature into the public domain. I'm told that
Peter Pan was awarded by parliamentary act a perpetual
copyright. Peter and his copyright will never grow old.
č United States database
legislation may award a continually renewing copyright to
databases that are constantly revised. This tactic will
permit content providers to copyright items in the public
domain and to keep that copyright fresh.
Real life, of course, is more complex than Saturday Morning
Cinemas, and our analogy can only go as far as the studios permit
us to take it. Does not the government's role in creating
property rights imply that unowned property is government
property and government property is public property?
At the root of the Old West metaphor is the single question: What
is the legal status of the public domain and what role does
government serve in protecting it for the use of the public. Are
there obligations and rights to be managed by the government for
the benefit of the public, just as unowned land is managed in
trust for the public –– for the public benefit? As far
as the Westerns are concerned, these questions are strays that
got away.
In their own way, each of the above definitions offers its own
set of entanglements for those who wish to exercise a
"right" to the public domain. The fact that I use the
word "right" to describe the procedure by which one
claims access to the public domain, itself, indicates that the
primordial public domain of definition two does not really exist
–– or it exists merely as a state of mind, an ideal, as
a projection of a golden age. The only rights that exist in such
a realm are the rights you take.
When the Declaration of
Independence speaks of "unalienable rights" it
speaks of rights that pre-exist government. ("...to secure
these Rights, Governments are instituted among Men, deriving
their just Powers from the Consent of the Governed.")[11] Copyright is not one of the
"unalienable" rights addressed in the Declaration of
Independence, but it is quite clear that government must
create and therefore must manage other rights in behalf of the
governed –– the public. For a government to take works
from the public domain –– by establishing copyright,
for instance –– it must have claimed (by implication,
if necessary) the domain in the name of government. From this
domain, government has carved out a variety of mostly expanding
and rarely contracting zones of protection to rights-holders.
But, in creating one set of rights-holders, government thereby
consequently sanctions a second body of rights-holders
–– rights-holders who enjoy the rights not held by the
first set and whose rights extend therefore to all those works
not otherwise awarded. In other words, under government, rights
to intellectual property cannot be vested in nobody, they are
either awarded to individuals or corporate bodies or remain in
trust with the government on behalf of the public.[12]
We can use the metaphor of the "open range" (Public
Domain type four) –– where private interests (the
farmers, sometimes homesteaders) fence up sub-domains with or
without government warrant –– to help us understand our
current copyright conundrums. One side sees the pasture land and
the trails for the cattle drives, as a public resource
–– perhaps created by the government, but basically
intended to be free from governmental interference and from
private claims. The other side looks at government as a force
that enables the creation of private property. For them, the
range is a governmental resource in which the law sets the rules
of ownership; the law that protects and encourages the creation
of personal property is made to prevail over the public's right
of access to the public domain. Life imitates the movies.
Thus, for the farmers, the public domain exists to be colonized.
For the ranchers it is a perpetually renewable resource. The
ranchers can't recognize the legitimacy of the farmer's private
property, and the farmers can't allow the ranchers to graze and
drive cattle over their homestead.
Most readers will have realized by now that the metaphor in
which real property stands for intellectual property is faulty,
since the taking of someone's intellectual property for specific
uses does not rob the owner of his property; it is not a taking,
per se, but a limitation on the exclusive right of distribution.
In the end, the holder of intellectual property remains the
owner.
To this writer it seems as if modern-day efforts by copyright
holders to curb the practice of claiming fair use, and proposed
limits placed on the transfer of copyrighted items under fair use
or under the first sale doctrine, or on cracking encryption
schemes, rely upon assuming that intellectual property is much
the same as real property –– that the metaphor we
commonly use to describe intellectual property falsely stands for
something quite tangible and real.
Indeed, according to Pascal Kamina, toward the
end of the nineteenth century, in Europe, there was debate about
the legal status of intellectual products. Those who wished to
claim that ownership of works of invention should endure forever
chose to call such creations "incorporeal property", or
"property of works of mind." Kamina notes that
"from the 1870s some authors opposed to the characterization
of IP rights as property (and technically to a notion of
incorporeal property) started to use the term 'intellectual
rights' (droits intellectuels), as a sui generis type of
rights..."[13]
In retrospect, we might wish to interpret the range wars of the
Old West as a conflict between those who saw their use of land as
a right and those who saw land as a property. Similarly, today's
Public Domain conflicts pit those who look at intellectual
products as perpetual "property" against those who
claim that use is a temporary "right." Hence the
conflicting ideologies of Mary Bono and Il Postino, cited
above.
In the case of works of art, the problems become more difficult
because art is both "incorporeal" and
"tangible." Nobody maintains that a painting or a
sculpture whose "intellectual" component is in the
public domain is not also real property that can be owned. In
such works, what then, are the rights that may be exercised by
the public. Which property –– public or private
–– should have sway? Should holders of public domain
content trapped within privately-held works be required (under
reasonable conditions) to permit direct or surrogate access to
the public domain elements that manifest as personal property
–– held captive within? Or should the right of private
property and personal privacy be allowed to prevail over public
rights? Has the non-copyrightable content wedded to privately
held property been effectively removed from the public domain? In
the real world, public policy swings both ways on issues like
these.
We will want to ask whether releasing the public domain component
of such works diminishes the value of the works? Will it diminish
the owner's ability to exploit the intellectual property
component of the work –– an element he seems to control
but may not own?
In real life, when domains are understood to exist for the
benefit of the public, the right of public access is held to
supercede the right of privacy of private property owners: In
California, for instance, owners of private property along the
ocean front are required –– if no other means is
available –– to provide the public with ocean access.
In this case, the public has a right to cross private property to
access public resources.
Tyler Ochoa (Professor of Intellectual Property Law at Whittier
Law School, and frequent contributor to these Town Meeting talks)
offers this related example. It has two parts: The first part is
well known to intellectual property attorneys. The second part,
for our purposes, the most important part, is less well known. In
Part One: CCNV (the Community for Creative Non-Violence)
commissions artist Reid to produce a sculpture. CCNV claims it
owns copyright in the work as a work-for-hire. Reid sues CCNV to
obtain copyright, and in a Supreme Court decision, Reid is
awarded the copyright requested. In the lesser-known Part Two,
Professor Ochoa tells us that Reid, now the copyright owner, must
sue to gain access to the work for the purpose of making a
reproduction of it. The district court where the case was heard
granted artist Reid the right of access to his work. In this case
the right of private property yields to the right of the
copyright owner.
This is a story in which rights to private property must yield to
the interests of a copyright owner. Is there any corresponding
applicability to the Public Domain? We ask: what standing does
the public have, if any, to compel access to the public domain
component of a privately held work? Does the public have rights
to the public domain in the same way a copyright owner owns
rights to a piece of intellectual property? Ochoa suggests that
the answer to this question may depend upon whether the public
domain is interpreted as holding works owned by everyone
(meaning, therefore, that the public has the right to use it) or
whether the public domain is interpreted as a body of works owned
by nobody (so nobody has standing to prevent reproduction).
Let's see how other authorities define "public domain."
The Oxford English Dictionary defines "public domain"
as "belonging to the public as a whole." This notion is
supported by definitions that start by defining the word
"domain" as an area under the rule of a government.
Consequently, the "public domain" is an area set aside
by a government for public ownership. The government, in this
case, represents the interest of the public.
Others
interpret "public domain" not as property or ownership,
but as a set of rights of access. For instance, in the Gifis Law
Dictionary, Public Domain is defined as "information, the
source of which is available to anyone." We saw, above, that
Eric Eldred looks at the public domain as a set of rights given
to the people when the Constitution has not reserved them for
another purpose. Elsewhere, the courts have stated that the
public "owns" the public domain.[14]
Diane Zorich proposed earlier this year in the Chicago Town
Meeting the following definition: "the public domain refers
to all entities, information, and creative works that are
available for use by anyone for any reason without
restriction."[15] By this she means that
access to the public domain content of privately held works
depends upon whether the work is made physically available
–– implying, I think, that there is no inalienable
public right of access.[16]
If the public domain is a public resource –– unaffected
by the rights and privileges of private ownership –– if
it is a holding intended for the unencumbered use by the public
–– what standing does the public interest warrant?
Would it be possible on behalf of the public to sue for access,
as did artist Reid, when access to his own copyrighted work is
denied? Most people respond in the negative; private property is
sacrosanct –– hence Ms. Zorach's definition.
* * *
At the dawn of the twenty-first century,
just as it seems to be getting ever more difficult to define what
is meant by the "public domain," it is also becoming
more difficult to determine who exactly is its "public"
and what precisely are the rights due it. Public spaces,
including parks, stadiums and theaters within cities are becoming
either less inviting or are being made over in the corporate
image, branded by commercial sponsorships and emblems.
Correspondingly, we look at the public less these days as an
entity with its own social and economic agenda, and more as an
audience –– a purchasing statistic –– a
projection of corporate wishful thinking –– consumers
–– focus fixed on illusory realities neatly packaged,
measured and delivered to the owners of thirty-second spots or
commercial web-pages. This is a society, after all, where
individuals use money to express their value systems, and pay
homage to their gods by buying personal clothing marked with
commercial insignias. In such an atmosphere it is becoming more
and more difficult to define and deliver that domain we call
public intellectual property. Indeed, public access to the public
domain, more frequently these days comes in the form of
copyrighted packages, be they retold stories or databases. More
and more frequently public experiences (and, thus, public
expectations) are but a melange of privately owned content.[17]
* * *
As if it were a demonstration of Boyle's Law in the form of a
social pressure gauge, as the boundaries of the public realm
compress, the voices that call for its preservation become ever
more heated and shrill. In this atmosphere of compression, it is
becoming clear to many that the public domain is not simply a
refuse heap or a "dark abyss" where works wallow until
they fade into oblivion. The public domain exists because it
serves a public purpose, and that purpose cannot be well served
if access to it is restricted and if its contents are removed,
hidden and transformed for the exclusive benefit of private
enterprises. Accessing its contents is not like picking daisies
in the field. Those who intend to bring the public domain forward
for the public to use must work their way through a jungle of
competing interests.
In the discussion above we have looked at the "public
domain" as a space –– a virtual space ––
like "cyberspace" in which expired works reside. The
impetus to use this metaphor is natural, and follows easily from
the language commonly used to define it: "to fall into the
public domain;" "to search the public domain." But
at its core the public domain is not a place at all; to some
people it is just the legal status of individual works that are
no longer in copyright or that cannot be in copyright, to others
it is a guarantee of rights no longer reserved for the benefit of
creators.
But using the "public domain" comes down to applying
set rules to individual works. What role do the fictions we
invent to describe the public domain play in the definition of
these rules. Is the public domain what is left over after the
pro-copyright forces have their way, or is there a societal need
to think of the "public domain" as an entity that must
be nourished and preserved? Does the Constitution, by defining
rights for holders of intellectual property, consequently define
the rights of everyone else. The question we end with is the
question we started with: Who owns the Public Domain and what
does ownership mean in that territory? Is the public domain an
endangered resource?
* * *
Part II: Public Domain Received
Go
to Part I
This second part surveys some of the practical issues
encountered in building a public domain image database. In this
case, a database for which the mission is to use the public
domain to serve educators, scholars and the public. I will use as
an example the Academic Image Cooperative, an image database for
teaching the history of art.
In the first part of this paper we discovered that the meaning
of the "public domain" bends to fit the needs of those
who wish to use it. This second part is ostensibly about one
project that plans to distribute digital versions of public
domain images. Although based on a single project, in fact, its
lessons apply to just about any organized public domain database
effort. In this part I will cover some of the practical issues
one encounters when the mission of a non-profit endeavor is to
serve the public domain to educators and others participating in
non-profit endeavors.
Each problem I describe has an impact on how public domain works
are chosen and affects the rules under which they may be
distributed. Some of these issues you will recognize from other
contexts, some manifest as a result of the legal status of public
domain works or as a specific result of using donated rights to
images. Surprisingly, while one would expect access to the public
domain is based on law and statute, in reality access is defined
by working through a variety of "visions" of the public
domain –– such as those identified in part one of this
paper.
Nonetheless, I do not mean to convey, by virtue of the
description of these issues, that either the mission or the goal
of the project I describe is any less important, any less
desirable or any less achievable as a result of these
complexities. My purpose is simply to dispel any notion that
using the public domain and using donated rights amounts to a
free ride to the land of universal image access. On the contrary,
difficulties notwithstanding, the public domain images and the
public domain works of art whose images we collect often have
their own significance and worth quite separate from the standard
commercial resources. The very act of collecting them and
distributing them is its own reward; they do not exist merely as
surrogates for commercial resources.
In this short time I cannot even begin to trace the birth of
the movement to harvest the public domain for its concealed
riches. I will, however, note in passing (partly because its
founder, Hayward Cirker, passed away last month) that Dover
Publications (perhaps the most prominent of the many reprint
houses using the public domain) helped bring to the public
consciousness the fact that many works of art reside in the
public domain and are begging to be made accessible ––
which is to say that there is a popular market for select titles
that are not well-known classics. Dover's quality editions
–– often designated as part of the Dover
"Pictorial Archive" announce boldly for everyone to see
that –– and I quote:
individual items in the book are copyright-free, and may
be used ... without further payment, permission or
acknowledgment. You purchase such rights when you buy the
book.
The only rights they reserved for themselves
were the rights to the book as a whole –– the right of
compilation –– and the right to protect their archive.
These Dover editions convey the public domain to the public for
public use.[18]
Anyone slightly familiar with using the Public Domain is aware
that its shape (if we can use this metaphor) does not fit snug
into a square box. The borders of the domain are irregular and
kinetic. Without elaborating, you'll get the idea when I tell you
that certain foreign works have gone into and have come out of
the public domain. U.S. works may or may not be in the public
domain based on when they were published, whether they were
published with or without notice of copyright, whether their
copyright has been renewed or not, or whether a work is a work of
the US government or not. Access is another important issue. For
the assembler of a public domain database, rights of access warp
the legal shape of the public domain landscape.
To decide if an individual work can be published, it may be
necessary to submit it to a public domain analysis, where its
legal status is researched. Not all works are clearly in or
clearly out of copyright: What, for instance, constitutes an
uncopyrightable work of the U.S. Government? Are photographs of
public domain works published by the Smithsonian Museums and the
National Gallery of Art uncopyrightable government works, and
therefore in the public domain? Are documentary photographs of
two-dimensional public domain art works –– following
the famous (or infamous) Bridgeman decision –– also
uncopyrightable. What is the status of a print from a
photographic negative? Do prints inherit the copyright date of
the negative? What is the status of a unique work –– a
singleton –– that has never met the criteria of
publication. What is the status of unpublished works created
before copyright existed? What rights do scholars have to
withhold their public domain findings from publication? For
people who wish to hunt for treasures in the wildernesses of the
public domain, these are all crucial issues that turn the borders
of this realm into unmarked and disputed territory.
But how does one obtain access to public domain property?
Everything is owned by someone or some entity. Does one pay the
library a fee to enable access or to license use of the work? Or
does the library provide the resource gratis as part of their
mission. Will library fees be prohibitive? While there is no
single answer to these questions, the solutions are manageable if
a single work is to be reproduced, especially if multiple sources
are available. Access to public domain works that exist in unique
copies can be much more complex. Works may be in the public
domain, but gaining access may be a consequence of negotiation.
How crucial are the results of these decisions will often depend
upon the kind of project for which they are destined. When a
publisher –– like Dover –– finds a work to
republish, typically only one public domain analysis needs be
completed for that work.
The algorithm changes markedly when it is not a single
volume that is going to be "republished," but rather
multitudes of works from multiple sources –– for the
topic at hand –– it will be multitudes of images.
* * *
I am addressing you, here, today, in part, because I am the
project manager of the Academic Image Cooperative. The AIC is a
non-profit venture whose mission it is to collect digital images
of works of art for eventual distribution for educational and
scholarly use. AIC images when used by educators are expected to
be generally unencumbered by copyright or licensing restraints.
The purpose of the AIC is to provide curriculum-based digital
image resources to educators and scholars, especially when they
are otherwise lacking or unavailable. The AIC expects to serve
academia by acquiring works from the public domain and by
attracting contributions of images from the community of
scholars, in this way building a structured archive of works that
otherwise might have remained unavailable or forever lost.
Although I am here, today, to inform you what I've learned about
the real-life complexities of using the public domain, I must
tell you that I am not here to represent the Academic Image
Cooperative. While much of what you shall hear is based on my
experience at the AIC, nothing I say should be understood to
represent its current plans or intentions. In fact, the AIC is
currently reassessing its mission and its projected
methodologies. The opinions expressed, therefore, are entirely of
my own invention, as are some of the scenarios.
To meet AIC objectives, obviously we have put much thought
into potential image resources. Under the AIC mandate we expect
that we will not be empowered to provide images of any works that
are still under copyright (not at first, anyway). The Public
Domain, therefore, will be the fount from which our images
derive. The vision of the public domain that drove us here, the
romantic dream of the public domain as a bountiful garden and the
AIC as care-free gatherer of its fruit, of course, did not hold
true.
Where is this "public domain?" How do we secure its
contents? From whence come the resources needed to decide whether
10,000 or, in our case the 400,000 or more works offered to us,
indeed, are in the public domain? How does one make decisions in
a real world, where interests and loyalties compete, where levels
of uncertainty shadow nearly every decision and where rights are
not always easy to untangle.
Of course, my purpose here is to tell you that the wide ocean
of the public domain is filled with untold and maybe unfound
treasures. But when you hear that they are out there just for the
taking, be aware that "it ain't necessarily so."
Some of these impediments you will readily recognize:
- Until 1999, with each succeeding year, a new crop of
public domain images would (ideally) have been brought to
the fore. Now, under the Sony Bono Copyright Term
Extension Act, works that would have become public
property now have an additional twenty years to wait
until they fall into the public domain.
Why was copyright extended? There are more reasons than
simply to make US law conform to international standards.
We have become an historically conscious civilization
living in an environment of evanescent fads and instant
change, where opportunity, if it passes your way, must be
grabbed by the forelock. In this atmosphere, once the
products of the human mind and spirit reveal economic
longevity, they become fair game for those who wish to
continue receiving the benefits of ownership. The
constitutional promise that copyright will be
administered for the public good seems to us to have been
turned upside-down; but, in this light, public good is
defined as economic viability. Under this regime,
copyright should be everlasting, so that Mickey Mouse and
his kinsmen can remain the property of the Disney Company
until they no longer have value. (If Congress would just
bestow an honorary right of publicity or personality on
the famous rodent, we'll be done with it.)
- Another hindrance to using the public domain in an image
database lies in the complexity that defines what is in
and what is out of copyright. For instance, according to
Lolly Gasaway's famous chart (http://www.unc.edu/~unclng/publid-d.htm),
works published between 1923 and 1963 when published with
copyright notice would have had a copyright period of 28
years, but, if renewed, the period would be extended by
47 years, which now is extended again by 20 years because
of the Term Extension Act. If they were not so renewed
they would lose copyright and would be in the public
domain. However, if they were never published with
notice, they'd be in the public domain from the moment
they first appeared and couldn't be renewed or extended.
The reality is even more complex, but this gives you an
idea of how it goes.
What do these statutes mean for a database such as the
one the AIC is building? For the kind of pictures we
collect, individual public domain analysis is expensive.
For day-to-day operations, there is only one practical
methodology: accession policy must choose the most
conservative boundary as a functional bright line that
separates what is acceptable and what is not acceptable
–– a line to be breached only when the status
of a work is either unquestionable or quick to determine.
If a work is accepted as public domain, we must also
document why it was accepted.
What kinds of published resources are available in this
way? Well, certainly books and photographs produced
before 1923 (if their pictorial content is suitable) are
candidates. Picture archives –– often holding
high quality black-and-white photographs of works of art
are other attractive resources. But how many such
archives keep track of the dates of their accessions.
Very few. Many of these photographs are simply not dated
–– at least no date appears anywhere one can
see. Many of these photos have been mounted onto thick
fiber-board backs, thereby obscuring any date or
copyright notice that once might have been visible. So,
even if they were in the public domain through
non-compliance with the notification requirement, you
couldn't tell. It is not worth determining if the
copyright of a photograph was registered or renewed.
8x10 photographs of works of art are now mostly provided
by museums who use their own staff photographers. But
frequently, in early times, they were produced by
photographers who were commissioned to take them, by
museums, by individuals and by publishers. How does one
identify whether a work was registered or renewed if you
can't tell who owns the copyright. Sometimes picture
archives keep track of the sources of their images.
Professor Hackenbusher donated his photo collection in
1922 –– a terminus of definite significance,
but more than likely such materials surface undated and
even unidentified.
The spectrum of undated images is divided into four
groups. Some definitely precede 1923, some might; others
certainly follow, some might. On which side is it on?
That is the question. Here, the picture curator must take
an educated guess –– and even more importantly
–– must do some sort of instant risk analysis.
Is that to be allowed?
If the public domain has misty edges, what boundaries do
we choose for our own database? If we have taken a work
under copyright even accidentally, will we ever be
challenged for having done so? Will we gain a reputation
for sloppiness. Will anyone ever notice? Attempts to use
the public domain can be riskier than contracting to use
materials whose rights are clearly identified. (More on
this later.)
The best archival photographic sources, ironically, may
be those that have never been accessioned into research
image collections, for these photographs are most likely
unmounted –– but, alas, they are also
frequently uncatalogued.
- There are some images –– such
as the thousands produced continuously since 1852 by the
Fratelli Alinari –– that are documented and
datable. Indeed, many of their most important images are
now securely in the public domain. I'm told that
Professor Creighton Gilbert at Yale has been assembling a
list of Alinari images and has been matching them to the
dates of their first known appearance ––
specifically to identify those images that are out of
copyright, and those that will be.[19]
But this activity opens up the door to another issue.
Certainly image supply houses such as the Alinari have a
vested interest in maintaining the economic worth of
their holdings, and might wish to claim copyright using
any available credible or incredible means. But, even
more importantly, any database organization such as the
AIC, as a member of a scholastic community, dedicated to
serving its needs, wishful of respecting and honoring the
dedication, achievements and the services of those houses
that have serviced the discipline so well, might not wish
to challenge such a valuable resource as the Alinari.
Discretion, being the greater part of valor, may lead
some editors to look for pictures elsewhere ––
at least during the fragile early years of repository
development when it may be imprudent to step too boldly.
- Luckily for the AIC, access to books with Public Domain
content does not appear to be an issue ––
except to those that Copyright Term Extension put into a
twenty-year holding pattern. The AIC has the cooperation
of a major Art History academic library, and has been
promised unfettered access (condition issues, excepted,
of course) to a world-class collection of rare and
significant art publications. When it comes to access
rights, it helps to be viewed as an altruistic,
non-profit, educational, valued service fulfilling a
great need. The more one appears to be
"for-profit" the harder it is to obtain access
to resources. Even a not-for-profit entity that must
charge membership fees to be self-supporting may find
access to resources closed.
If access to books and archives appears to be no
significant hindrance, selecting and using public domain
books and archives have their own issues. In many ways
the history of art manifests as a history of opinions and
trends. Scholarship molds our impression of periods and
erects intellectual scaffolds onto which theory or
connoisseurship attempt to hang the available artifacts.
Our understanding of these areas is in continual flux.
Any database intended for professionals must provide data
that is both authoritative and documented. A good
database needs to be treated with the same respect for
sources as would a scholarly paper. This is not to say
most users need their current data documented, but future
users might. If we wish to be considered authoritative,
it is always good practice to identify sources when we
have them at hand. This is not difficult to do; you just
have to decide to do it.
The need to document is especially important when taking
data found in photo archives and in early art historical
printing. There is a good chance that older data may no
longer represent modern standards or opinions. Few
database services, except perhaps those funded by giant
endowments or those working under special cataloging
grants, can afford to research each accessioned image.
The only way to make this kind of information serve our
population of users is to acknowledge that knowledge is
mutable, to record what is available and to expect
someone to notice that additional cataloging might be
appropriate.
For this reason, the Academic Image Cooperative was
planned to exist for, and to depend upon its community of
users. As a community effort, the AIC expects to be
informed by the public when need exists for additional
and corrective cataloging. For that reason the AIC will
be able to earmark new and/or questionable works in order
to present this material to our expert community for
their scrutiny. Here is a case where we expect the
peculiarities and disadvantages of the public domain to
help build community. We expect scholars (especially
young scholars) to volunteer to become specialist editors
–– their work counting as professional service.
If the AIC can demonstrate the ability to create and
maintain useful scholarly cataloging, I've been told that
foundation support is often available to help this
process continue. While the AIC expects day-to-day
operations to be self-supporting, not all foundations
demand that scholarly services that create value
–– such as cataloging –– adhere to
that standard. Nonetheless, using the public domain adds
unexpected overhead.
- As anyone can well guess, the most vexing access issue
concerns access to works in museums. There is no need to
explain why museums are so protective of their holdings
and of images of their holdings. They need the income
from for-profit publishers. Let us just say that while
some museums go to great lengths to control the
distribution of images of their collections, others have
more liberal policies that flow from their educational
mission. In the best of cases, some museums see their
mission as that of steward. Their job it is to take care
of the material culture placed in their care. Their
mandate is to protect and display their holdings
–– their objects––, to pass them in
good condition to a successor institution when and if the
time comes, and to distribute knowledge of these works to
the public in the best way they know how ––
sometimes by liberating the images to the winds of
artistic and intellectual needs.
Other museums see their function more narrowly, i.e. to
show their works, to protect them, of course, and, in
addition, to protect their reputation and to project
their significance. They do this, in part, because the
reputation of the museum bathes in the reputation of its
collection. For this reason, among others, access to
images and permission to photograph images tend to be
highly restricted. In these cases the museums are prisons
and the pictures are prisoners serving to bolster the
self image of the museum.
But I do want to bring attention to one of the
road-blocks erected by some museums to keep control of
their intellectual properties. This is the infamous
"museum policy on photographing works of art in
their collection." For those of us gathering their
fruit in the orchards of the Public Domain, we want to
ask: what do these policies mean; how much force do they
have. How important is it to respect museum policies that
are ostensibly self-serving and contrary to our view of
the public good and contrary to the intent of copyright
law as we understand it.
We will skip over the "photography in the
galleries" rules that keep people from producing
quality images –– no tripod –– no
flash, and focus instead on the rules concerning image
use that photographers are asked to respect. Typically
these restrict the use of permanent collection
photographs to personal, non-profit, educational uses.
Sometimes museums require prospective photographers to
sign a log to show that they agree to conform to the
stated policy. This log is actually a contract.
Here are excepts from a museum policy statement taken
from the website of an important museum that everybody
knows:
Still photography is permitted for private,
noncommercial use
only in the Museum's galleries devoted to the permanent
collection. Photographs cannot be published, sold,
reproduced,
transferred, distributed, or otherwise commercially
exploited in
any manner whatsoever. ... The use of a flash is
prohibited. ...
Tripods are allowed on weekdays only, and only with a
permit
issued by the Information Desk ...
Typically, museums post such policies (or bits of them) on
signs in the entrance hall or print them in hand-outs or
brochures. Whether such signs have any more legal force than
the disclaimer that appears (or used to appear) on automobile
garage tickets, has not yet been determined. But, whatever
they mean, violating museum photography policy is not a
violation of law. In the worst case it would be a contractual
violation. Were such rules sufficient to affect a
photographer's use of his pictures, they would not extend, I
think, to third parties who receive such otherwise
unencumbered images from the photographer –– but
remember, according to the policy, above, the pictures can
not be transferred. In the final analysis, the public domain
content held by museums that exhibit works may not be
protectable at all, but until museums realize that making
their collections available to the public in useful ways is
part of their mission, or (cynically) until the quality of ad
hoc picture taking improves drastically, public domain museum
works will be functionally unavailable, except, perhaps, to
those underground poachers willing to liberate public
property to the public by scanning or scamming.
Luckily the above museum has one of the more liberal policies
regarding the use of their images for non-profit educational
uses. It is an open policy; images from their website can be
placed on educational and even personal web pages under
certain easy to meet conditions –– permission is
not necessary. Even so, in its liberalism the museum still
maintains theoretical control of nearly all pictures
published from its collections. Anyway, their own website
pictures have no commercial value of which to speak.
Museum policies often are stated more strictly than they are
enforced. For instance, I asked the above, word-class museum
what their policy would be if someone wanted to publish an
image of an object from their permanent collection, and that
image came from a source that pre-dated the acquisition of
the work by the museum. The museum, I was told, would offer a
current image to use instead –– at no cost. That
way both agendas would be served. But what might be the
policy were one to ask for 1000 images of their works in the
public domain? The answer: "We can't afford to process
all that stuff."
It should be obvious that an organization that expects to win
the respect and support of the community it serves cannot
without just cause and without sufficient legal confidence
define itself as an institution that ignores the mores of
that culture. And yet, what response is appropriate in those
cases when these mores exhibit a flagrant disrespect for the
intention of the laws of intellectual property and for the
rights of the public –– when they take unfair
advantage of the populations upon which they rely for support
–– when they foster building miniature monopoly
interests in their works. Is a program whose mission it is to
use the public domain in this way ultimately going to
implicate itself in an outlaw conspiracy to liberate
kidnapped art?
As time passes, of course, more and more of these
difficult-to-obtain images will become available through
reproductions that "rise" out of the state of
copyright and enter into the public domain –– many
are available already. Indeed, some museums may be persuaded
to provide suitable images as a counter-measure to the
uncontrollable distribution of those of lesser quality taken
on site or stolen from websites. Some museums are already
posting their entire collections on their web-site for public
scrutiny and use. It is only a matter of time until museums
come to realize that their public images must be merged into
a database that extends beyond their own institutional
confines. That is one goal of the AMICO project. Certainly,
if the Bridgeman decision becomes generally accepted, museums
may wish to substitute their own images en masse for the
inevitable slew of poor scans that are destined to appear.
Eventually, fulfillment of the inevitable ethic of the World
Wide Web must turn museums into the instruments of their own
liberation.
We have already discussed the conflict between the public
interest in obtaining access to the public domain and the
desire of the private sector to control its personal
property. In the end individual private owners may have the
most sway to prevent access to the public domain component of
their holdings. What, however, is the responsibility of the
public museum? What obligation do public funding and public
tax benefits impose on a museum's mission to make
reproductions of its collections available for public use.
While no museum with which I'm familiar has gone so far as to
embrace this mission and offer high quality images to the
public, museums have been working toward this goal on their
own steam. With benefit of the Internet, some museums have
begun ambitious programs in an effort to post images of their
entire collection –– usually in small enough image
sizes not to jeopardize income from reproduction fees, but
large enough to expose the collection to the public and to
potential commercial users. In other words, while such
endeavors seem to meet the public need for increased
exposure, they fail to provide suitable imagery for teaching
and research.
Through a variety of structures, museums –– even
those that present themselves as "public" or
municipal museums –– frequently contrive to place
ownership of works behind a network of private trusts and
ownership models. In this way, public funds are used to
support museum administration, public access, educational
programs, etc. without incurring an obligation to release the
public domain component to the public. The purpose of these
trusts, of course, is not prima fasciae to control
access to the public domain, but, instead, to insulate the
collection from potential governmental intrusion ––
admittedly a more important purpose than securing image
rights.
- What promises to be the most successful means of
obtaining images of public domain works for the AIC
database, is one of the most intriguing. For decades,
scholars, art historians, architects, and tourists of all
kinds have been photographing the world's store of
cultural monuments during their travels. Architecture,
archaeological sites, public sculpture and other works
without and within museums and other repositories are
recorded as photographs in these private collections.
Most of these images are of works in the public domain.
Many have been photographed with a scholar's eye for what
is important. Many are of professional quality. The
photographs, of course, are the copyrighted property of
the photographers. The AIC has put out a call to art
historians and to all who collect these images,
requesting that they use the AIC as a place in which to
pool their images for the mutual benefit of the user
community. The response has been overwhelming
–– within a few months, with minimal efforts at
promotion, offers totaling about 400,000 images were
received –– not counting proposals of
cooperation, mergers and marriages from other image
enterprises.
The plan is simple. Photographers give the AIC
non-exclusive rights to use their images for specified
purposes. The AIC chooses from among those works offered
those that conform to the AIC acquisition program, and
catalogues and prepares digital versions of these images.
AIC users inherit all or some of the rights offered by
the original rights holder. The plan is very clear, and
on the face of it, very simple. But, as with all
intellectual property transactions, even those concerning
works in the public domain, there are problems that
emerge and that must be solved.
It is ironic, perhaps, but most of the problems that
emerge when using the Public Domain in this way arise
either from trying to protect oneself from errors or as a
consequence of working within an organizational structure
that uses donations. Indeed, there is a special set of
issues that come up when works from the public domain are
distributed and when works have been licensed from
donors. These are the sort of problems that tend not to
emerge when license agreements govern copyrighted works
provided by institutions.
Foremost is the problem concerning responsibility for
errors. What if, without our knowledge, we accept images
that are not the copyrighted property of the donor or if
we accept works that the donor has no right to
distribute, or images of works still under copyright, or
if the donor misrepresents the status of the donation
–– either willfully or accidentally. Certainly
the risk factor is low, and if justly notified, we'd take
appropriate action. But, as an organization that expects
to raise just enough money to keep itself going, that
depends on grants and sponsorship, on the good faith of
the community, the river of obligations and
responsibilities runs deep. If profound problems emerge,
upon whom does ultimate responsibility fall? Perhaps if
it were easy to determine the difference between willful
misrepresentation and accidental misrepresentation such
problems would not be difficult to resolve in advance. If
rights were being purchased by the AIC it would be easy
to expect sellers to guarantee to indemnify any losses
that are traceable to their misrepresentations and
errors, but because the AIC depends on donors and upon
the good will of our scholarly community, it would seem
highly unfair and ultimately self-defeating to require
such donors to guarantee indemnification for the
consequences of innocent errors. The roads through the
public domain are not as well marked as they are through
the domain of copyright and private property
transactions.
Then, there is the user's perspective. If a program such
as the AIC warrants that all or some of its images may be
used under a license that guarantees unencumbered uses,
what happens when the AIC organization is the source of
an error. What happens if the user gets sued by a
self-identified copyright holder and the user in turn
sues us for offering more rights than we had available?
User agreements can transfer responsibility: they can say
that to the best of our knowledge all distributed images
are clear of copyright and that all uses are taken at the
risk of the user. This might satisfy all academic and
private users, since they could always claim that in any
case their use was a fair one. But what do you say to
commercial users to whom you have sold a license to use a
work? In such cases, each prospective commercial user
will need to conduct its own risk analysis. In the world
of commercial rights management the expectation of
profits is sufficient motive to absorb potential risk. In
the world of donated rights and non-profit exchanges, it
is more difficult to determine who is to absorb those
risks. Where is the motive to accept that kind of risk?
There are, of course, numerous ways to confront these
issues. The first might be handled by isolating sponsors
from responsibility and by turning the AIC into its own
not-for-profit entity as a means of capturing
responsibility for its own actions; another way is to
acquire insurance to cover wrongful uses. A third way is
to make decisions based upon our own expert risk
analyses. Another way is to sell the entire operation to
an art-book publisher or to an image vendor who uses the
public domain resource as a means of developing a
critical mass of images or as an adjunct to textbook
sales. Until these problems are addressed, they are
impediments unique to our kind of mission.
- Finally, the AIC is built upon a revolutionary notion,
one that art historian Gary Schwartz articulated at the
Toronto Copyright Town Meeting in 1998, some time before
the AIC was formed: By collecting faculty photography, by
taking images from the public domain and by acquiring
other free-to-use sources to be distributed to educators
for free or for the cost of maintaining the service,
financial pressure will be placed upon conventional
for-profit image vendors who charge what the art
historical community feels are exorbitant fees for image
use and for publication rights. The purpose, of course,
is to place downward pressure on these fees. It is quite
possible that in fulfilling its mission, the AIC will set
itself up as a lightning rod at which the for-profit
image industry can direct its efforts to thwart its
success. In a small way this has already begun.
For all of these problems there are solutions; some will be
negotiated, others may require taking aggressive legal positions.
The point is this: From the outside, the public domain may seem
an inviting playground, but it is not without its own issues
–– as one might expect in any enterprise.
Do I think it worth all the trouble. The answer, of course, is
"Yes." If I thought the answer were "No," I
wouldn't be here explaining the risks. These risks are relatively
low. The academic and visual resources community is highly
ethical, unusually motivated and almost entirely altruistic. With
persistence, ingenuity and creativity, small and large problems
will be solved. And, in the end the AIC and/or some other
similarly composed entity, will have gathered together an
unprecedented array of public domain images, or images of public
domain art, along with the data required to document the cultural
and artistic riches of the past. And, who knows, as the critical
mass of these works grows, that mass may develop a gravity of
sufficient magnitude to attract other image resources. They will
help fill the inevitable lacunae. Some will be dedicated
primarily to serving academia and teaching; others may address
the needs of the for-profit industry and museums. Some of these
resources will offer free images; others will offer site-licensed
images or images for sale. Under the proper conditions works in
the public domain and works with copyright restrictions and
licensing costs can co-exist and take their place in a uniform
search environment that offers academia and industry broad and
systematic access in a data-rich environment to meet a variety of
needs and to satisfy a highly stratified market.
The economic model behind the Academic Image Cooperative is an
idea of such persuasiveness, it meets so many crucial needs of
education in an atmosphere of dwindling fair use, that
ultimately, in one form or another it cannot fail. The
demonstrated need for a program like the AIC, in my opinion, will
carry it over the rough landscape of the public domain.
Top | Bottom
Notes:
1. Digital Millenium
Copyright Act of 1999. [to
text]
2. March/April 2000. See http://www.cni.org/Hforums/cni-copyright/ to find the archive of cni-copyright. Search for
"public domain question" in subject area. [to text]
3. "The Originality
Requirement: Preventing the Copy Photography End-Run around
the Public Domain," Professor Kathleen Butler, Thomas
Cooley School of Law, Lansing (April 5, NINCH Copyright Town
Meeting, San Francisco. See http://www.ninch.org/copyright/townmeetings/sf.html .) [to
text]
4. The differences between
"fair use" and "public domain" are
significant. A claim of Fair Use, is made against a claim of
copyright. When an owner challenges a prospective fair user,
it is the obligation of the fair user to defend his claim.
When someone publishes from the public domain it is the
responsibility of the copyright claimant, to prove his legal
interest in the work. So, while "fair use," on its
face, first appears as an infringing activity, use of the
public domain appears to take advantage of that state into
which all intellectual property eventually retires. For the
user, the difference is like the difference between hunting
and harvesting. However, the net effect is the same:
intellectual property is seamlessly transformed (be it for
the moment, or for ever) into available cultural property.
The "first sale" doctrine, the
right to transfer ownership of the tangible entity in which
copyrighted materials are recorded is not cited here because
the "first sale" doctrine does not implicate the
right to distribute or publish intellectual property. [to text]
5. Date: Wed, 29 Mar 2000
15:55:50 -0500, Reply-To: cni-copyright@cni.org, From: Eric Eldred eldred@eldritchpress.org, To: Multiple recipients of list cni-copyright@cni.org, Subject: Re: public domain question. [to text]
6. A query on Alta Vista
yielded 268 hits for the phrase "fall into the public
domain." It is a common expression, and not everybody
uses it in the manner I describe; nonetheless, its use
establishes a hierarchical relationship between the state of
being under copyright and not being under copyright. [to text]
7. Intellectual
Property and the National Information Infrastructure, The
Report of the Working Group on Intellectual Property Rights,
Bruce A. Lehman, Assistant Secretary of Commerce and
Commissioner of Patents and Trademarks, Chair. Information
Infrastructure Task Force, Ronald H. Brown, Secretary of
Commerce, Chair. September 1995, p. 60. [to text]
8. Editorial, February 21,
1998. Quoted from Howard Besser. "Recent Changes to
Copyright: Attacks Against the Public Interest" in
[Source Book of Readings] published by the National
Initiative for a Networked Cultural Heritage and the Visual
Resources Association for the Copyright Town Meeting on the
Public Domain, San Francisco, California, April 6 [sic April
5] 2000. [to
text]
9. At the dawn of
publishing, soon after publishers realized that their
expensively edited works were being counterfeited throughout
Europe, publishers began to press for the protection of the
reigning sovereign. "Avec privilege du Roi pour six
ans," one might read on a book's title page in the
mid-sixteenth century. From the beginning it was understood
that protection was a temporary state. Protection provided
motive to create; but it was copying that built the
civilization. [to
text]
10. Software Publishers
Association now a division of the Software and Information
Industry Association (SIIA). See http://www.siia.net. [to
text]
11. Action of Second
Continental Congress, July 4, 1776. The unanimous Declaration
of the thirteen United States of America (http://lcweb2.loc.gov/const/declar.html). [to
text]
12. Tyler T. Ochoa,
Associate Professor, Whittier Law School (tochoa@law.whittier.edu) has found the following court reference " to
bolster [his] view that public domain should mean common
ownership: In Mayer v. Josiah Wedgwood & Sons, Ltd., 601
F. Supp. 1523 (1985), the work fell into the public domain
because of publication without copyright notice (back when
notice was still required). The court said:
It is elementary that once
copyrightable material is published without the author's
first securing federal copyright protection, the author
loses his property interest in the material. The material
becomes public property. ... In this case, Mayer no
longer owned her design. The public did."
From cni-copyright@cni.org. Thurs, 06 Apr 2000. [to text]
13. E-mail to Robert
Baron, Feb 25, 1996 from, 'Pascal Kamina
pk10005@hermes.cam.ac.uk. [to text]
14. See note 12. [to text]
15. Diane M. Zorich.
"Why the Public Domain Is Not Just a Mickey Mouse
Issue," Comments prepared for the NINCH Copyright Town
Meeting on the Public Domain Held at the Chicago Historical
Society, January 11, 2000, http://www.ninch.org/copyright/townmeetings/chicagozorich.html. [to
text]
16. I tested this idea on
the Internet discussion group hosted by the Coalition for
Networked Information, parent of our co-host today, NINCH. I
wondered outloud whether the public had the right to secure
reasonable access to the public domain component of a work
otherwise under private ownership if such access would not
compromise the ownership of the work itself. The answer was
telling. It came back plain and simple: to propose such a
remedy in which the public interest superceded private
interest, indicated without doubt, a Socialist, later revised
to a Communistic mentality. [to text]
17. The demise of public
spaces and of the freedoms they encourage is a topic Howard
Besser presented at the NINCH/VRA Copyright Town Meeting in
San Francisco, April 5, 2000. See http://www.ninch.org. [to
text]
18. The Dover Pictorial
Archive, of course, is only the latest manifestation of a
long tradition of using book illustration as patterns for
other creations. During the sixteenth and seventeenth
centuries, for instance, artists and artisans frequently used
woodcuts of Bibles and other picture books as sources for
their own designs. Perhaps most frequently copied were the
woodcuts of Bernard Salomon, whose cycle of over three
hundred images for the Old and New Testaments were copied by
illustrators and painters all over Europe. While individual
books may have received royal protection in those times,
individual images did not. Woodcuts and other portable images
formed a ready "functional public domain" that
helped spread the narratives and compositions of many
inventive artists all over the western world. [to text]
19. Thanks to Susan
Williams for this information. [to text]
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