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.

  1. 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!"

  2. 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]

  3. 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.

  4. 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.

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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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