VRA-ARLIS NINCH Copyright Town Meeting
The Changing Research and Collections Environment:
The Information Commons Today

St. Louis, MO / March 23, 2002
Reconstructing the Public Domain
(Metaphor as Polemic in the Intellectual Property Wars.)


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..a vigorous public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible to tolerate copyright at all.

Jessica Litman. "The Public Domain," Emory Law Journal, Fall, 1990
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Metaphors are dangerous things. They easily take on a life of their own, determining how we think, what questions we ask and what comparisons we make
. – Edward Rothstein, "The Mysterious Meme, a Seductive Metaphor" (Review of The Electric Meme: A New Theory of How We Think by Robert Aunger),  New York Times, August 3, 2002.
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Abstract [Contents]

This paper advocates the development of a strong public domain as a remedy to the copyright industry's success in convincing Congress to increase the length and scope of copyright. To revitalize the public domain, and to reveal the means by which our copyright system has been induced to lose its traditional balance between interests, public and private, the author collects and analyzes the rhetorical language and metaphors employed by advocates for a tight copyright regime and by proponents of a strong public domain. It is through an analysis of the function of metaphor, language and images used in the disputes emerging from advocates, respectively, of secure copyright and universal public rights that the underlying principles and values of the opponents emerge. It is this writer's contention that a vital public domain and Constitutionally sanctioned use of limited copyright are mechanisms built for sustaining creativity and are crucially needed to forge a vibrant and nourishing copyright culture. These two halves of the creative pie – public domain and copyright, which we tend to think of as polar and contradictory in nature – in the United States Constitutional system are, in fact, fundamentally interdependent; they reinforce and sustain each other through a Constitutionally mandated scheme in which competing self-interests are balanced against each other. While this is not a new observation, to comprehend the benefits and necessity of the Constitutional formula, those immersed in advocacy for one side or another may need to step back from their cherished positions and adopt a newfound broadmindedness. Deconstructing the language of copyright may help serve this end. Further, this paper claims that in the interest of promoting harmony, it should be noted that obligations owed to others have a better chance of earning respect when seen as a consequence of rights and benefits received.

Throughout the paper a variety of remedies are proposed to foster repairing the imbalance to which our copyright system has been subjected. As a whole, these suggestions are not to be viewed as the author's systematic agenda, but rather as a series of miscellaneous proposals for reconstructing a just administration of copyright. In that light, they are offered more to inspire discussion than to offer solutions. This paper concentrates on issues arising from attempts to reproduce and publish works of art and to use works of art in teaching and scholarly research.




I. Introduction – Metaphor and Politics:
The Disrespect for the Public Domain

The way we use language, the very figures of speech and the metaphors we fashion to air our thoughts in our efforts to catch the minds and hearts of our listeners and readers, often proves to be more revealing of our presumptions and biases than one might anticipate based on what is actually said. Use of metaphor in the language of persuasion, while instinctive, is frequently crafted neither innocently nor naively, and when called upon to serve as an instrument for the benefit of ideological conflicts, is rarely employed dispassionately; it readily charges itself with the weight of self-righteousness and implied damnation, seizing ready-made figures and examples from the rich traditions of our common heritage. Metaphor used in this way recasts conflicts so that what might have begun as a contest of principles, in the end turns out to be a struggle for dominance and vindication based upon the consequences and potency of the imagery employed. [n001]

While patently economic in origin, the intellectual property conflicts in which we are currently engaged – where those who want to maximize ownership rights find themselves in opposition to those who wish to moderate those rights for public benefit – are fought on battlegrounds where the symbolic language of metaphor gains purchase from our moral, ethical, and mythic values. Although we use the fighting words of metaphor to persuade, when the rhetoric of persuasion has evolved into a language of convention, one can be assured that the ideological terms of the conflict have already been set and the result is as good as ordained. Or is it? As will be shown further on in this paper, metaphors that have served as the building blocks of the edifice of the pro-copyright establishment, and that have entered our copyright vocabulary with the full force of idiom, are now in the process of being deconstructed.

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This report is about the language and metaphorical foundations used in a war often said to be about "property," not "real estate" or tangible objects, but about a kind of property called "intellectual property," which, in its own way, is just as vital as other forms of property to the welfare and structure of modern society. The meanings of the term, "property," or rather, its implied meanings, are crucial to the debate. The phrase "intellectual property" as we commonly use it, masks (probably purposefully) the distinction between what is called tangible or "corporeal property" (things) – to which one body of law traditionally applies – and "intangible property," as applied to works of the creative mind – a distinction that is relatively new in the legal universe. [n002]

Crucial to our understanding of "property" in this regard is the assertion (and counter-assertion) in 18th- and 19th-century French and English law and American thinking that such intangible creations deserve to be treated in exactly the same way as material – corporeal – holdings, with many of the same attributes and the same rights of ownership in perpetuity. [n003] The use of the word "property" in this sense, serves as a metaphor intended to underline the identity theorists had forged between corporeal things and intangible matter – and this is how it has come to be used in the modern world when we speak of "intellectual property." The term "property," as we use it now, consequently, has been turned into a thought-weapon intended to skew the outcome of debate and to undermine efforts to define rights attached to works of creation as merely the granting of an ephemeral privilege by government for the purpose of promoting continual creation of such works.

In France, the distinction between "property" as applied to things, and "rights" or "privileges" when applied to literary matters, was definitively established during the late 19th century. In an 1887 decision (the so-called Ricardi case) the French Supreme Court ceased using the word "property" to refer to intellectual holdings:

The author's rights and the monopoly they confer, usually called by the name of literary property, do not constitute, strictly speaking, a property, they only confer to the person in whom they vest the exclusive privilege of a temporary commercial exploitation. [n004]

Before then, the legal status of inventions of the mind was the subject of an extended debate in which some argued that the products of the mind belonged to the public and others held them as the property of creators. The Enlightenment placed considerable value on the spread of knowledge, and this notion permeated the thinking that created the balanced treatment of copyright in the United States Constitution. Jefferson's frequently-quoted manifesto on the importance of the public domain will be relegated to a footnote in this paper, since, at best, it only reflects Constitutional thought; but we should note briefly, in passing, that he felt that inventions and ideas should not be defined as property: He says: "Inventions ... cannot, in-nature, be a subject of property." Even as we accept the distinction between tangible and intangible holdings, we must contend with works in which each are permanently fused into a single item – as we see in tangible fine arts. [n005]

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In this paper we will look at the language used to establish the primacy of the status of ownership in the realm of intellectual property, and in the way the so-called "public domain" – that body of works (simply put) generally immune to claims of private ownership – has been uncritically characterized as promoting a type of failure, which has come to be called the "Tragedy of the Commons."

The term "Tragedy of the Commons" is an invention of Garrett Hardin, a biologist who coined the phrase to describe an hypothetical situation in which users of a public domain of limited extent and productivity (what Lawrence Lessig characterizes as a "rivalrous" condition), acting with self-interest, would tend to overuse and ruin the resource. Privatization, believes Hardin, is the solution that controls unbridled destructive competition in such cases. Whether the hypothetical creates an accurate model of usage in such circumstances or not (Lessig thinks not), what is clear in the current context is that this notion of "tragedy" has been adopted by proponents of strong copyright to apply to those intellectual "nonrivalrous" holdings that are no longer in private hands. As Lessig notes, "[t]here is, ... no tragedy for nonrivalrous goods left in the commons – no matter how many times your read a poem, there's as much left over as there was when you started." [n006] (Indeed, one might add that lovers of poetry often discover more with each successive reading.)

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This paper owes its genesis to a series of informal remarks made at a recent Copyright Town Meeting dedicated to exploring the public domain. This Town Meeting, one of a series sponsored since 1997 by the National Initiative for a Networked Cultural Heritage (NINCH), was held in 2002 at St. Louis at the combined convention of the Visual Resources Association (VRA) and the Art Libraries Society of North America (ARLIS). I was happy to discover that neither of the two speakers [n007] who preceded this author allowed himself to use that one key phrase that we all use – unconsciously, automatically – that shibboleth of our indoctrinated preconception: "To fall into the public domain." [n008]

Thus, despite Lessig's insight into the fault that underlies Hardin's thesis, the expressive code nearly everyone in the United States uses to identify what happens on that route upon which copyrighted works pass on their journey to that hypothetical world we commonly call "the public domain" betrays the extent of our cultural indoctrination and of Hardin's influence. The language we use intuitively, conventionally, conveniently conveys not just a change of legal status, but reveals a worldview fabricated from culturally laden terminologies, foremost among these being that of tragedy and related encumbrances.

While "to fall into the public domain" is a common enough expression, sensitivity to its implied meaning is now causing some speakers to be wary of its use. On its face, one would think that the use of the word "fall" would not be so significant; after all, we say, "fall into the public domain" so automatically that one must pay special attention to avoid it. However, if we examine this word just a bit, we'll come to realize that the word "fall," when used this way, encapsulates a host of mythic and morally charged ideas that, by implication, serve to disparage the public domain, to undermine its perceived value, and thereby to certify the comparatively favorable disposition our civilization extends toward works that exist and remain under copyright. Our society favors the state of ownership – a colonial inheritance that mandates that possession should overtake that which is not yet held by anyone. We are taught that the legal status of being "under" copyright (like being "under" that protective umbrella used to sell insurance) is good and safe, and the "loss" or abandonment of copyright is unfortunate, precarious, and even to some degree, unethical or at least indicative of a moral fault within us. When copyright protection has been lost, we sometimes say that a work has been "cast" (like refuse) into the public domain. (See n008.)

As strange as it may sound to readers of this paper, to many other people the public domain, indeed, is a tragedy. This is so because copyright is the kind of power or the kind of right that works in the interest of the creator – the individual. It is the right that helps the creator receive just compensation for his goods and that gives him the motive – the financial incentive (so primal these days of market fundamentalism) – to be "creative" – in effect, serving a national purpose by encouraging private enterprise, and in this way, leading us through private profitability into a post industrial civilization of information economies. Our image of copyright instinctively responds to the traditional mercantile metaphor.

Creation, self-defined as a hallmark of our evolving society, is founded on the myth of the individual replicating divine handiwork. But, today, "creation" is also a code word for profitability. When we talk of "success," we cite the accomplishment of individuals; there are no heroic corporations in our national mythology. Thus, we think of copyright as one key tool serving to enshrine the individual in his effort to cast the world in his own image – seemingly, a very American enterprise. The copyright metaphor we have absorbed intentionally omits reference to the Constitutional mandate that says copyright is a utilitarian device created for the improvement of society, for learning and knowledge. Today's paradigm seems to look at the Constitutional scheme as suspect – a kind of communal endeavor that our native rugged individualism (a self-enhancing myth, of course) taints as representative of a now discredited communal, social and economic agenda. [n009] No wonder the loss of copyright to the public is viewed as tragic.

Be that as it may, neither the Constitutional purpose of useful evolution, nor economic intent serves as copyright's sole achievement; today we must acknowledge that copyright also exists for transcendental, even spiritual goals. Now that copyright protects works beyond the life of the author, it has evolved into a national metaphor for transcending mortality; it is treated as if it bestows a legacy of (potentially) everlasting life, of the sort with which one can pass the benefits of one's personal creative spirit down to both known and unknown descendants and heirs, and therefore, according to Representative Mary Bono, for instance, should be made to last, "forever less one day." She wanted copyright to last in perpetuity, but had to qualify her proposal when her staff informed her that the United States Constitution requires that copyright must be of limited duration. Her request came while lobbying before Congress for the passage of the Copyright Term Extension Act – her personal quest for a fitting monument to honor her late husband Sonny, who died so tragically, and whose chair she occupied. In asking for perpetual copyright, she seems to be saying "If you can't take it with you, perhaps it can take you with it," thus giving an entirely new meaning to the title "Dead Men Walking." At best, however, today the Copyright Term Extension Act is proving to be a troublesome tribute. [n010]

Copyright and other intellectual properties give shape to the metaphorical basis of the American success story. One might hazard to say that they are key to the American state religion of modern times. [n011] Our pantheon of American heroes is rife with inventors and creators like Thomas Edison, but also artists, pop stars, screen actors and industrial giants, among many other creators. They number among our success stories because so many of them are perceived, like Horatio Alger, as having created something of value out of nothing but a good idea, force of personality or strength of character – "rags to riches," as we sometimes say. Our dreams of success, achievement and immortality all seem to be raveled together into the same ball of national twine. Today, copyright serves as one fateful strand in that twine as it threads us into the future. We model copyright after the universal, after our myth of divine creation – the greatest success story ever told – a story to be promulgated with that special American brand of proselytizing zeal. [n012] Copyright permits the inventor to manufacture property out of thin air. In this way, copyright has fulfilled the American promise, ideally crafted to suit a country of immigrants – a golden opportunity for those who arrive on our shores with nothing but songs in their hearts.

It is the individual creator, says this attractive conceit, who is to be given full credit for his inventions. This is a boast that may reveal our national hubris, and as in Greek tragedy may turn out to be our undoing. The hard edge of current copyright law has evolved from the belief that creators are generally uniquely responsible for their inventions – they have no debt to anyone but themselves. But proponents of the public domain are quick to demolish this myth by pointing out that every creator, Edison included, among so many others, stands upon the shoulders of those who preceded him – that every work awarded copyright heavily depends upon the creations of others, many of which (not to mention those seized from works under copyright) are inherited from the public domain. [n013] Indeed, because copyright expires, whoever fails to acknowledge this debt (who maintains an unshakable faith in this conceit) eventually must face the inevitable loss that follows from the Constitutional pact that awards only "limited times" to copyright. In our system, copyright does not last in perpetuity; the creator's bargain eventually returns his creation to the boundless ocean of stories and experience that gave it birth. We can add a moral dimension to any human activity; in our society we cling to the hard edges of copyright because shallow, ephemeral but popular money-making products are more highly valued, economically, than are profound lasting values. Still, there is the urge to slip out of the copyright contract, and to do that one must lengthen copyright bit-by-bit until it lasts at least "forever less one day." (On extending copyright until it becomes a monopoly, see, below, in n038.) Jessica Litman has warned us, however, that as the duration of copyright increases, and as each new work will require ever growing numbers of clearances, the benefits of the public domain will become increasingly apparent. She says: "...a vigorous public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible to tolerate copyright at all." [n014]

Because we define our society by the positive acts of creation, invention and ingenuity, because our mythologized heroes of culture and science are those who, godlike, we believe have invented something out of nothingness, we fail to recognize – we have a stake in not recognizing – the seminal role played by the public domain – the fables, parables, the whole of world religion and literature, to which is added the myriad small works of creation that once populated daily life, which weave themselves into the unending fabric of art, fiction and fact that underlies our common experience and our culture's mythic and moral foundations. We have come to call this tapestry "the public domain," but until "copyright" was invented and invested with the attribute of temporary or permanent monopoly, there was no need for the public domain to be identified or named – and, of course, it wasn't. [n015]

When we think of copyright and the public domain our minds immediately focus on the great works of civilization and the current works of commerce, among many other important and popular creations, but these form only the visible edge of the copyright universe. Lest we forget, also included in this ideal repository are what some consider to be the trivial creations and records of civilization – a child's drawing, an ordinary diary or memoir, an anonymous family photograph. These, too, are protected by copyright and eventually pass into the public domain. The public domain is not just the land to which expired moneymaking inventions dwell in forced exile. We know now that those seemingly trivial creations, which most people consider suitable for the dust-bin, for scholars, be they protected by copyright or not, may well be crucial evidence for a reconstruction of our ways and beliefs and of forgotten events, and for artists the raw material for new works. The extended copyright of today is making it ever more difficult to obtain use of those records required to fulfill our ancient and everlasting mission to know oneself.

Pro-copyright activists habitually fail to recognize the legitimate interests of their neighbors in the copyright cosmos; their worldview excludes all but themselves. Hence, the extensions of copyright into the public domain that they engineer sweep broadly and entangle both commercially viable and non-commercial creations in the same net. One can almost state with absolute certitude that what is good for the masters of Mickey Mouse and for the copyright industries, when it comes to rights management, is going to inhibit scholarship, art and free thought and stymie learning for the everyday person. Paraphrasing from the movie The Postman, "Culture belongs to those who need it."

The central question we are being asked to decide here ultimately concerns our willingness to abandon our ability and our right to examine ourselves and our society in favor of creating an hospitable climate for economic gain, and in favor of concentrating the power to control that economic gain into the hands of fewer and fewer owners or repackagers. Are we willing to forget that our tradition of self-examination, through scholarship and other means is a strategy aimed at enabling and ensuring our social, political and economic successes? This question goes to the heart of traditional American purposes: What is more important, success or self-knowledge? The decisions we are making today are setting the stage to make these goals incompatible.

II. The Tragedy of the Public Domain [Contents]

If you read the literature of copyright carefully, it will not take long before you discover that the public domain is frequently defined in distinctively negative and darkly ominous terms. "No-man's-land" says one commentator, seemingly dismayed that some public domain work doesn't fit securely in the world of copyright and that nobody can truly own it; a "dark star" says another who sees value, but no force within capable of making a work shine. [n016] Of course, we are all now familiar with the term "to fall into the public domain." Whatever "tragedy" may have meant to Garrett Hardin in 1968 (see above), today it has accumulated additional metaphorical significances. (See also, n008.)

In Western culture the word "fall" comes loaded with meanings. Lest we think that the term "fall into the public domain" was favored without regard for its political effect, think for a moment of all the other words that just as easily could have been nominated to convey this transition: To "mature," "pass," "enter," "move," "advance," or "progress" into the public domain, and so on. Using the word "fall," singularly, unlike any of the above, serves to bind our view of the public domain to a series of primal mythic disappointments and tragedies, and therefore informs us that, as far as copyright and the public domain are concerned, a moral tragedy – a moral strategy – is at play. Thus the "fall" into the public domain implies a fall from the state of copyright grace. In English, at least, it conjures up images of the expulsion from Eden's paradise and of the consequences of sin – Eve's sin, the sin of weakness or temptation – the "ultimate" American sin, which leads to having to abandon property. For a work to "fall" is no less than an eviction from copyright paradise. Indeed, in terms of real property, it seems that there is hardly a better location than Eden; and a search of the Internet for the term "real estate" near the word "Eden" proves it.[n017] (The reader shouldn't bother worrying about the intellectual conflicts inherent in this use of language. This kind of metaphor is intended to manipulate emotion, and not appeal to the intellect. Indeed, in another frame of mind, the public domain can be identified with an unowned paradise of abundance.)

Thus, in our customary perception, the public domain is a less exciting place; being out of copyright tells us that as a society we have a stake in making certain that whatever importance we do attribute to the public domain, it is of a lesser rank than that attributed to those resources that the individual can control for his own exclusive benefit. In our national mythology, in our ethos, the public domain at its best represents a state of limbo for abandoned and unused works; it is where creative individuals can descend as saviors, so to speak, pulling out this and that in order to refashion something once valuable, but now lost, into something new, useful and productive (read: profitable), or into whatever it is that passes for trans-substantial in the chapel of mercantilism.

It is in this sense that Jack Valenti, speaking for the Motion Picture Association, says "a public domain work is an orphan." (See below.) At this point Valenti is indulging in that species of metaphor dubbed "the pathetic fallacy" – the attribution of human qualities to inanimate objects – which, according to John Ruskin, who coined the term, is a lamentable device that obscures truth. [n018] If a work can be rescued, it is an orphan, but if it can not, following in this mode of thought, he could as easily have called the public domain a "black hole" [n019] where currently productive and valuable works fall away from those who can sustain them and give them life, and then ultimately fall into the hands of any unscrupulous exploiter who might have no regard for the integrity of the original – as almost happened to the film It's a Wonderful Life. Those who scour the public domain in search of commercially promising "properties," in this way of thinking, could be likened to vagabonds and scavengers. Indeed, Valenti has called those who fight for an expanded or powerful public domain or who want to exercise their private fair-use or first sale rights, "terrorists." (See n024.) In this kind of copyright regime, where infringers and fair users are viewed as comrades in terrorism, there can be no shades of grey. It would seem that for Valenti, only copyright holders and their clients ought to be franchised with the right to harvest value from such works.

The pro-copyright agenda wants us all to believe that, like "orphans," the public domain is not owned by anybody – that its contents, in this condition, are as good as lost at sea, afloat, just waiting to be rescued. In this way the public domain is made to fit into the American ethic of moral rescue – to rescue the world from unprofitability and disutility – to rescue the world from something fundamentally un-American. One suspects that this kind of "rescue" is closely allied to the good work of religious conversion, where "fallen" souls, once lost, are found and saved from perdition. To rescue such works is to win the battle against the crime of moral entropy.

But is that how we really think about the public domain? Indeed, most of us who ally ourselves to the humanities and its associated professions probably think of ourselves as individual non-exclusive owners of the public domain – all of it, any of it. It is not that the public domain belongs to nobody – the legal implication of the term "being out of copyright." On the contrary, the public domain is crucial to our lives because it is perceived as belonging to each of us, individually, and to all of us, collectively. The paradox resolves itself when we realize that what lies in the public domain is our common cultural property. "These things are the universal heritage, the public commons, from which all may freely draw sustenance and which all may use as seems most satisfactory to them." [n020] Indeed, our sense of cultural intellectual property extends well beyond the public domain, as normally conceived, but for the sake of the "copyright bargain" we agree for a limited time to honor the right of copyright bestowed on authors of works of both wide and narrow cultural significance. Copyright, thus, in the Constitutional system, is a species of intellectual contract in which competing self-interests are balanced for the benefit of the whole – a contract every much as vital in its sphere as was the hypothetical social contract expounded by Rousseau in 1762, just prior to our own political emergence. If it is expected that users must respect copyright as a limited monopoly, it must also be expected that owners honor the passage of their works into the public domain.

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Why is it that we feel dispossessed when the public domain is taken out from under our feet by some extension of copyright? The answer seems simple enough. We feel as if something we own has been taken from us – each of us, individually – all of us, culturally and collectively. Listen to Joseph Sax, discussing the loss felt when some physical property of cultural significance has been destroyed:

Why do we feel diminished when something that does not belong to us is destroyed, or taken away? If ownership imports the full right to enjoyment, it would seem that loss of something we don't own could not deprive us (the nonowners) of anything. If the proprietor of a great painting keeps it locked in his house and then destroys it, how have the rest of us been harmed? In one respect we haven't. Yet there would undoubtedly be a profound sense of loss. Perhaps the most obvious reason is that the community has a long view, and likely the work would not have been locked away forever, so an opportunity has been lost. In addition, to destroy a work of art is an act of vandalism, a triumph of ignorance over genius; so there is the rending of a value that is important to the community, a symbolic loss that can occur to others even though the thing destroyed was not theirs. The same feeling of violation arises from a symbolic book-burning, no less if the perpetrators burn their own books. [n021]

Obviously there is a difference between losing a unique original forever, and a changing of ownership from the public to a private party; but how would people feel if their major art museum began to deaccession or assign rights to its holdings to private individuals who perhaps are claiming that they can do a better job in commercializing their use. The consequential feelings and their causes are analogous to the loss of the public domain. As far as cultural objects are concerned, we expect them to become public property eventually, just as we expect works under copyright to enter the public domain. When that journey is detoured, it should not be unexpected for the public to feel that it has suffered a loss. As Sax implies, such symbolic losses are the ones that burn most deeply. They smart because we feel that a work of the genius of the intellect, set to enter the public domain is our cultural inheritance, more valuable than possessions; it outlasts them and is invested with wider, more universal significances. We own it and we share it; how could you ask for anything more? As an heir to the public domain you are a member of a community that spans both space and time. [n022]

III. Metaphor Wars [Contents]

Today's public domain dilemma can be attributed in part to the clash of opposing cultural, economic and intellectual ethoi. For instance, our national cult of personality aggrandizes individuals, turns them into media stars, squeezes them into formulaic biographical molds (such as those broadcast on the "Biography Channel") and in this way builds cultural stereotypes by injecting the personality of the one into a mold shaped for many – the hero as everyman. Perhaps the most popular televised biographical topos is the heroic story of "overcoming adversity," but its first cousin, "the neglected genius belatedly recognized," is not far behind. The myth also manifests contrasting themes: "The ego-driven despot," and "The mad or evil scientist." There is also a hagiography of heroic self-sacrifice, but the stories that fit into the selfless public service mold tend to be told less frequently. In contrast, the contemporary academic world, at least in that small corner of the humanities in which this author resides, where a thriving public domain is a necessary and crucial tool, tends to respond to and reflect more varied representations. To contemporary art historians, for instance, the world can be modeled (to mention one mode among many) as the result of confluences of forces, opposed sometimes, evolutionary sometimes, unique sometimes, but almost always envisioned as a result of complex interplays of competing and dependent ideas – intuitions, invention, traditions, balances, politics and a variety of cultural, economic or individual self-interests – all of which are studied because they manifest as visual expressions or solutions. I suspect that this scholarly or academic mindset (not to exclude others, but just to talk about what I pretend to know) finds it easier to accept the notion of the public domain as a valuable, nourishing, multifariously chaotic place. In this projection, the very existence of the public domain exposes the contrivance, the pretension and the mythic self-delusion inherent to the notion of the self-made creator hero, and reports, instead, a more symbiotic model of the creator and creation than some of the pro-copyright forces seem equipped to handle. Undoubtedly it is discomfort with the chaos of the public domain, its organic, protean and random structure, its impenetrable depth and its consequential resistance to domination and classification, in addition to its sometime legal uncertainty, that offends and confuses the class of "copyright maximalists." For them, the public domain exists as a wasteland, there to be conquered and civilized; it is their burden – the eternal obligation of proprietary interests.

In this light, Valenti's use of the orphan metaphor (see above) exemplifies his inability to comprehend the inventive potential of film in the public domain – to him it is just a pool of lost opportunities. The "orphan" metaphor personifies the works of man and asks listeners to apply the same ethical or emotional standard reserved for people to a product of human creativity – as if the creator and creation are one. In this way it projects a smokescreen with which to obscure the real purpose of the metaphor. In addition, it imposes a model that doesn't fit. He used metaphor to shift a complex and potentially unpopular issue into a simple and sympathetic sphere. How curious it is that this metaphor merges image and reality – the very methodology of cinema. It presupposes that life should imitate art. The magic of this metaphor resides in the way it anthropomorphizes the work of art. Valenti invites us to enter his metaphor with him and to understand copyright as the kind of magic (to choose my own example) that will turn an Eliza Doolittle into "My Fair Lady" – the same alchemy (in the public domain, of course) that George Bernard Shaw in 1916 used on Ms. Doolittle, and that Ovid so much earlier gave to Pygmalion (through Athena as proxy) with which to offer the breath of life that turned white ivory into warm supple flesh. Movies such as "My Fair Lady" are rife with allegories that enhance the myth of individual creation that feeds (unlike Ovid's Pygmalion) on the self-satisfaction consequential to the act of rescue. It is thus no accident that "My Fair Lady" begins her miserable life with the name "do-little." Without surprise, we discover that movies frequently serve as allegories about making movies, just as they habitually demonstrate their long pedigree into the ancient reaches of the public domain. (See n010.)

It is not difficult, therefore, to understand why the big copyright combines, the Disneys and other movie studios work so assiduously to maintain their hold on properties teetering on the precipice of that black hole, properties ready to be sucked within and lost (to their exclusive use) forever. Within their value set, such rescues are economic; but they are also heroic and in their sphere represent moral victories.

So the public domain in our cultural lingo is a place defined and characterized by negativity, by loss, by missed opportunity. Defined in its extreme, it is negative matter, it devours creation, and is the domain of the dark angel of discredited communism – of those who would see in it that necropolis where dwell once useful, now failed and faded inventions. And yet, to others it is the breeding ground of the new and untested and represents something crucial and fundamental to our wellbeing and humanity, the wholeness of human creativity and the source for demonstrating and understanding the continuous history of creation in society. [n023]

This language is pushing the imagery hard, of course – metaphor does have a way of running away with itself and becoming its own reality – at once its beauty and its danger. But, metaphor aside, we must understand that those who want to extend the length of copyright and in this way control and claim the public domain, must truly believe (the possibility of cynicism, aside) that they are doing what is right for the creative spirit that manifests as a boon to the country, its economy (and, without seeing any discrepancy), for their industry, too. It sounds odd to my ears, but (returning to Copyright Term Extension), I find it difficult to see how increasing the period of copyright ownership of necessity will inspire new creativity (the goal of copyright); on the contrary, it would seem to favor the breeding of a wealthy class living off rents received from ancestral copyright estates. Even more troublesome, lengthening the term of copyright dramatically increases to non-copyright holders the cost of producing new works – a high bar for new creators to pass. This effect alone helps the big studios maintain a virtual monopoly in selecting and rewarding new talent, and prevents outside competition from those who cannot afford to pay the entry price. In this way, the "war," if this is how we choose to characterize it, becomes a contest to control not just works in copyright, but the institution or domain of copyright, itself.

* * *

The substance of intellectual property is so elusive and the benefit to be obtained by maintaining control of it so crucial to owners, that protecting it readily lends itself to hyperbolic metaphors. No wonder that those who believe that intellectual property is rightfully wholly the property of the creator (or the assignee) interpret any threat to their hegemony as the work of meddlers. The rhetorical devices employed recently have been becoming increasingly extreme, indeed, so extreme that the copyright lobby raised the metaphoric ante by claiming that nearly any effort to bypass their parochial and self-serving construction of the copyright barrier is the work of an enemy. Librarians exercising first sale rights by allowing people to read books for free, have been compared to terrorists, and Jack Valenti, as always, representing the Motion Picture Association, sees his battle to gain full control of movie media as an episode in a terrorist war. [n024] The moral dimension to which this rhetorical quarrel aspires is approaching the kind of archetypical conflict posed between the Virtues and the Vices, as articulated so clearly on medieval architecture that even the most unlettered observer instantly understood which path was true and good and which was evil. In this charged atmosphere no room is left for argument and just considerations.

It is time to ask who actually believes their own rhetoric, why do they believe it and what function it serves. At its core, copyright warfare is akin to cultural warfare, and takes its form and its language from all-consuming cultural conflicts of recent memory. If we are not careful we can allow ourselves to become prisoners in our own matrix of metaphor. Siva Vaidhyanathan has rightly observed that metaphor becomes the weaponry of such culture wars. [n025] He says that whoever controls the most powerful metaphor controls the high ground of public opinion and shapes the conflict, but, in this case, I argue, without contradicting the above, that the ground is not necessarily firm ground. The copyright cartel and their lobbyists have grafted together morally charged terms such as "thief" and "pirate" and now "terrorist" to demonize both patently illegal, unethical infringements and benign, permissible unlicensed uses of intellectual property, and in the process have attempted to ignore customary, court-sanctioned and statutory distinctions between the two. But, in saying this, one assumes, perhaps incorrectly, that this group yet admits the distinction – for instance, that it acknowledges the concept and utility of "fair use." Refusing to be budged, they may be banking on the assumption that a nuanced position is self-defeating, that the one-hopper approach may be the one most easily understood and the one that gets the most statutory mileage – setting the stage for future legislation. But this kind of extremism, breeding a religion of copyright absolutists – copyright fundamentalists, one might say – is fueled and validated by an unquestioning belief in the metaphors of one's own rhetoric – and that is always as dangerous as it is ultimately counter-productive. [n026]

Edward Rothstein, in a book review appearing in the New York Times, notes that "powerful metaphors are by nature intemperate. They can seem to take over, manipulating rather than serving their creators." [n027] In the end, the inability to climb out of one's metaphoric cage feeds a climate conducive to self-destruction – especially hazardous to the business of copyright management and ownership. Decisions in this area – which ultimately involve the fate of our inherited liberties – cannot then follow from a rational appreciation of facts, but instead are fed from an emotional response to one's own propaganda – just as sometimes happens in real war. The copyright cartel, in this writer's opinion, has forgotten that its great success relies upon the openness and freedom of the public domain (of a wide liberal public domain), which they, themselves, continually mine, and equally depends upon the freedom that users of copyrighted materials have traditionally exercised. In this writer's opinion, the more anyone succeeds in restricting the fair use of their own properties, and the depth of the public domain, the greater will be their own difficulties as creators, and the less will be the demand for their products, and the fewer will be the number of people who want to access or use them. History tells us that excesses of control lay the ground for revulsion and revolution. Nature seems to thrive on balances; those who would have it any other way soon suffer the larger or smaller consequences of overreaching. With any luck, they will realize sooner than later what opossum Pogo discovered: "We have met the enemy, and he is us." [n028]


IV. The Commons: Trends and Resources [Contents]

The NINCH ARLIS/VRA Town Meeting entitled "The Information Commons Today," from which this paper derives, is one of a series of recent efforts developed to reawaken public interest in the value and role of public resources in the creative panorama. First manifest as a series of theoretical legal treatises, this revival is now making its way into fora such as the series of Copyright Town Meetings, which are aimed at intellectual property practitioners within academia. The purpose of programs such as these is to reassert and resurrect the concept of the public domain, to redefine it in practice, and to place it firmly in the context of preserving the set of liberties and freedoms guaranteed to citizens by the Constitution and exercised by democratic people. The "public domain of the intellect" is one of the public places and resources to which we refer under the rubric of "The Commons."

The revived interest in the "commons" is taking several forms. One of these is a series of studies of the nature of the "commons" as a public and historical institution: the commons of public recreation, of discourse, of the marketplace, of fact, of access to the history of thought, literature, culture and art. Another branch investigates the nature of the public domain of intellectual and real property as a legal entity – as defined under case law and jurisdiction – as an aid to guaranteeing use of the commons. A third looks at the "commons" as the collective enterprise of a community dedicated to its principles – as a cultural and creative phenomenon made more important by the development of the Internet and related computing activities – the commons as a social enterprise – as a commonwealth of like-minded individuals. A fourth branch focuses on the process and activities necessary to collect, identify, classify, expose, publish and present the public domain. It is composed of all those projects and efforts that attempt to collect and distribute works that have been taken from the public domain or that have been dedicated to it to serve a public purpose. In the distribution arena, many projects will be offered unencumbered by intellectual property claims; others will offer resources through purchase or through license. To cite a program with which this writer was associated, an example of a project of the first category, The Academic Image Cooperative originally aimed at producing an archive of unencumbered teaching and research images that could be used without limitation for non-profit educational use and publication. Its demise suggests how difficult our copyright culture makes it to acquire and present the public domain freely in and of itself. [n029]

It is outside of the scope of this writing to survey these materials in detail, the substance and subjects of which already may be substantially familiar to readers. For further study, readers should be directed to the following very useful resources, details on which may be found in the notes and appendix:

  • Howard Besser's web-page of links to material on the information commons, [n030]
  • A series of papers and framing documents put together for the Duke University Law School's "Conference on the Public Domain." [n031]
  • A third group of documents and resources relating to advocacy issues is added as an appendix to this paper. This list is comprised of a series of on-line resources distributed by the Duke Center for The Public Domain as one of its last acts before it closed up shop this year.

V. Reconstructing the Public Domain [Contents]

One should not be surprised that the process of redefining the public domain or reconstructing our appreciation of its significance reaches for the same kind of rhetorical tools and hypothetical models employed to trivialize and diminish its worth.

The public domain envisioned by the movement in support of the commons has been defended and defined by analogy to the theory of the ecosystem, and by reference to the myth of innocent childhood and to the Ovidian story of the Golden Age. Speaking in psycho-historical terminology, we are told that our current values are molded by the experiences of childhood and infancy. Not born with an innate sense of property (so goes the story), children are greeted in life by a world that they accept unquestioningly as belonging to them – better put, as not belonging to anyone, but free for them to use as if they haven't yet distinguished between the "I" and the "it" of existence. At that time, the air, sky, sun, playground and street; the woods and rivulets, even the neighbor's apple tree belong to that innate, even primitive commons that precedes knowledge of property – a state in which subject and object may very well be phenomenologically indistinguishable. In short, the world surrounding us, even when it is actually private, like the neighbor's front lawn, becomes part of the commons of infancy. Without even a rudimentary grasp of what private property signifies, to children, until adequately warned or taught at times by bitter experience (and not even then sometimes), everything is freely accessible – at least until greeted with enough "keep out" signifiers to make a permanent impression (and to turn them into adults).

Obviously simplified for this presentation, this mental construct may not represent childhood as experienced as much as it stands for an adult's projection of a childhood remembered and reconstructed. [n032] Do such values sustain themselves by reference to inherited cultural memories – to species memories? Are they passed down to us through the literature of childhood? Do these attitudes represent what adults want children to know about their first world – one that typically takes place on an Acadian or bucolic stage? Do they signify adult disfavor with the world they created for themselves – the world of experience? Whatever the response to these unanswerable questions, in our society the world of innocence is one to which children are supposed to respond and cherish within their virtual memories. In that sense, it is real enough.

Thus, it matters little whether such theories are respected by science. What does matter is their ability to grip the imagination of the listener and convince him that the theory is viable for purposes of understanding the object of the simile.

Theories favoring the public domain look to reach into the spiritual core of human history and knowledge systems, while those for copyright grasp at economic and transactional models. Proponents of the former are prone to saying "yes," of the latter, "no." Curiously, metaphoric imagery created to promote or disparage the public domain tends to be implicit and rarely explains itself, as if there is no difference between metaphor and reality. Thus, when Justice Brandeis in 1918 tells us “[t]he general rule of law is, that the noblest of human productions – knowledge, truths ascertained, conceptions, and ideas – become, after voluntary communication to others, free as the air to common use,” [n033] we can surmise that the public domain to which he refers by analogy is only partly built from his conception of the history of the public domain and its political and democratic foundation, or (for that matter) from his life-long experience with the atmosphere. No doubt, this passage is as compelling as it is because, despite its Jeffersonian allusion (see n005), it resonates profoundly with the mythology we have built around both the early childhood of Western Civilization and the story of modern man's infancy. This vision of a public domain is also inspired by its foundation in western mythology. In some ways, it resonates with Ovid's representation of the Golden Age of human history, where food in abundance waits for the taking, where man lives in harmony with nature, and ideas of property – private as well as public – are unknown. In Ovid's account of the world after creation, property is the invention of the last age of man, the age of hard iron, where

all evil burst forth into this age of baser vein, [when] modesty and truth and faith fled the earth and in their place came tricks and plots and snares, violence and cursed love of gain ... and the ground, which had hitherto been a common possession like the sunlight and the air, the careful surveyor now marked out with long-drawn boundary line. [n034]

In such a mythology, and in the manner in which we define the commons, the very idea of "public property," of a "public domain," cannot exist except as an instantly created counterpart to the claim of property as something "private" and separable. Not the fact, but the notion of a public domain, itself, is an invention, a consequence of the "big bang" of the created private domain. The mythologized public domain moreover is reminiscence (rather Platonic in the way it makes reality depend on myth), a flight from the modern age of hard iron where copyright and claims of ownership are unwelcome necessities. We cherish the free flow of information among children and in cultures and sub-cultures not yet spoiled by having marked out domains of copyright, such as those perceptively identified and described by Siva Vaidhyanathan. [n035]

* * *

Brandeis' comment, perhaps unconsciously echoing Ovid, is almost a manifesto. James Boyle calls it the baseline for our understanding of the public domain. It is the point from which the trend of shrinking the realm of what belongs to the public began. What was once regarded as open and available to all is now seen as an inefficient place where lack of ownership is a symptom of waste and a lack of productivity – the "tragedy of the commons," as we have seen it called. If a work has no economic value, this theory seems to state, it has no value at all. The commons, such as it exists, this new theory sees as testimony of a failure, which is ironic and a complete reversal of the ethical basis of copyright, because, as Boyle puts it, "in a very real sense, protection of the commons was one of the fundamental goals of intellectual property law." Indeed, before the 1890s, explains Professor Tyler Ochoa in a forthcoming paper, the term "public domain" was not used in American jurisprudence. Instead, works whose copyright terms had expired or works that did not warrant protection were variously called "public property" or "common property" and were characterized as "the property of the public." [n036]

By accepting no value but that bestowed by economic potential, the contemporary version of copyright is poised to exploit and take title of the public domain. In so doing it is ready to jettison the entire array of inherited culture save that which can be turned into profit. This kind of predatory incentive flies in the face of all humanistic educational values, and contradicts much of what we say we stand for as a democratic nation. That is not to say that works whose value lie outside of the profit system have no significance, but, rather, it implies that to show them and distribute them, they must find a distribution niche within the economic and administrative matrix created for for-profit enterprises, and this includes the work of charitable trusts and the work of not-for-profit enterprises forced to live by the code of "sustainability." I'm avoiding characterizing the mass of public domain works as "unprofitable" here, since, within the context of the economic system that now rules copyright, the word connotes "failure" and thus fails to acknowledge that works of potentially profound "significance" may lie outside of the economic rewards system. It is almost as if performance (as in the stock market) is prerequisite, and that anything that does not meet market expectations is an embarrassment and must be allowed to slide from view.

The tragedy of the tragedy of the commons thus is a consequence of copyright's economic model. As the commons is shrunk, worth is determined solely by economic demand – by what things might fetch in the market – works of significance without popularity are forced to live and die under a regime that has thrust copyright economics upon them. Many works of latent significance, such as old snapshots or documentary images, which, unlike great paintings and other works that catch the popular imagination, rarely have corresponding economic value, nevertheless are forced to fit into the brokering system created for using and distributing all works under copyright. Fair use notwithstanding, they cannot escape the grip of the model. So, for them, instead of being free (as the air), as they should be, they are now – even when minimally priced – made functionally unavailable or economically unattractive by a confluence of unacceptable prices, the insurmountable administrative overhead of rights management, and by frustrating costly efforts to locate a market willing to sell them or an owner to whom to apply for permission to use them. This is an economy turned inside out, where cost is the factor that makes potentially useful things that should be free appear unattractive and unwanted. A rising tide sinks all boats with short anchor chains.

The paradoxical effect is that expansion of copyright for works that don't fit into the economic model actually reduces access to them and could very well condemn them to a life of undeserved oblivion and uselessness. Herein lies the crisis assaulting scholarship and the free flow of ideas. What we are describing is textbook market fundamentalism. [n037] Extending the term of copyright sharpens the edge that separates what will be available for a price from what cannot become available at any price.

* * *

The Constitution of the United States empowers Congress "[t]o 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, Sec. 8). Does retroactive extension of the term of copyright – or to put it another way – a reduction of the breadth of the public domain – fulfill the Constitutional mandate? We are told that "limited times" [of protection] are given to authors to "promote the progress of science and useful arts." The Constitution offers protection to motivate creators and draws limits on the duration of these exclusive rights to feed the public domain (already noted) – the so-called "copyright bargain." But the incentive to create comes not just from awarding a period of protection, but also from removing it. Authors facing expiration are encouraged in this way to create more and to create again – as if to say that man may not live on rents alone – as if to remind him that he must always be engaged in producing something useful for himself and for the society in which he lives. While creative genius certainly imposes its own obligations on those who possess it, the Constitutional system demands debt be balanced reciprocally. Each man owes a debt to society as society owes to him. In this micro-/macrocosmic equation  we recall John Donne's Meditation XVII, in which he reminds us that mankind is interconnected, each person to the whole: "No man is an island," he says.

While it is no doubt true that extension of copyright provides added opportunity for owners to exploit the properties they already own, it follows that the lengthened term could well act as a disincentive to be continually creating; it discourages innovation. This consequence can readily be understood if one looks at how the so-called copyright industries are constantly recasting and recycling the same set of characterizations and the same hackneyed plots, ad infinitum; or how they try to hang on to successful production formulas long after it is evident that they have worn them out. Further, because many of these properties are aimed, year after year, at audiences of children, and therefore play repeatedly to the same age group, for whom they will be forever new, there is a diminished incentive to create truly new works.

If protection of these programs were to expire sooner than later, content providers would face competition from potential future creators and even would have to compete against their own successes. That is the kind of competition that helps secure a healthy creative environment and is good for the evolution and improvement of the arts and sciences. Disney's greatest hits, as everyone knows, are frequently taken from the public domain; but, they are successful, not because of their public domain source – though that certainly opened the door and let people know they were viewing a "classic" (or a screwy version of a classic) – but, rather, because of the creative often brilliant interpretations to which they were submitted by their authors. These days, so many of the products placed in the entertainment marketplace, in contrast, are over-used, inbred, frequently anemic and devoid of new material – outside of veneer and trappings. Furthermore, I submit, because they are dreadfully uninspiring and mind numbing, they contribute to dulling the creative urge in their audiences. They are primarily products, scaffolds on which to hang advertisements (or to rush into video rental stores), and rarely are creations in the best sense of the word. In effect, lengthening the term of copyright actually may invite unwelcome consequences and serve to reduce invention. To enhance creativity, copyright terms need to be shortened. Today's copyright industry, the spoiled child of a heartier age, would do better in the long run at this point to receive a strong dose of tough love. [n038] Continuously feeding its seemingly insatiable desire for increasing protection ultimately will open a valuable industry to decay from within. Lobsters left inside a tank digest themselves from the inside out.

* * *

The theory that longer periods of copyright do not satisfy the Constitutional requirement for promoting the arts and sciences, is not the same thing, says James Boyle, and others, as saying that the public domain must be strengthened. Shorter terms of copyright do not necessarily imply that the public domain is to be recognized as an entity. To protect works because they are in the public domain requires a reassessment of the status of the public domain as a legal entity. We are beginning to realize that the public domain must be understood as an entity having both legal warrant to exist and the ability to grant jurisdiction over its contents to some kind of protective trust dedicated to serving and protecting the public good. This might be a quasi-public trust, a stewardship, a conservancy. Some degree of experimentation may be necessary to determine the appropriate formulas – with acknowledgement that varied situations may warrant varied solutions. Whatever schemes are selected, we deserve some kind of entity dedicated to the public's interest, in whose behalf a member of the public may have standing to sue to protect the public domain status of a work or to obtain access to a work in the public domain. The right to sue for such purposes must be provided under a theory of the public domain. Of course, this would have to be an unusual public trust. Except in the case of a conservancy, the assets of such a trust cannot be itemized; its limits cannot be demarcated. It could obtain no income from the administration of its assets (should it have any). It would exist as a means of protecting and extending the rights of the public to such materials when so identified. At minimum, the public domain must be restored as public property, in the form Tyler Ochoa has demonstrated existed before the twentieth century. [n039]

Pursuant to the arguments put forward by Boyle, one should point to an interesting Supreme Court decision in which the public domain was described and attributed with related characteristics. I shall quote Boyle and include his quote from the Supreme Court's 1966 decision in Graham v. John Deere Co. of Kansas City:

In a 1966 patent case, repeatedly citing the work of Jefferson, the Court made it clear that the public domain has a constitutional dimension.

The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.

This is a remarkable statement. It goes beyond a mere recitation of the Framer’s attitudes towards the dangers posed by monopoly, and makes an affirmative defense of the public domain. Notice how the limitations are stated as additive and not as mutually equivalent, or even as mere corollaries; the court does not say that ‘the enlargement of the patent monopoly must promote innovation and this limits Congress’s power to remove material from the public domain.’ Instead it postulates an existent public domain and makes it unconstitutional under the patent clause for Congress to privatize any portion of that domain. There are echoes here of the “public trust doctrine,” which restricts the state’s ability to privatize public resources or waterways and turn them over to private parties. Notice also that the court gives the public domain both direct and indirect protection: protection from measures which formally create patent rights over portions of the public domain, but also from those which merely “restrict free access to materials already available.” [n040]

Were the above sufficient to resurrect the public domain, papers such as these would not need be written. But, as many propagandists and lobbyists know, wars for the mind can be won or lost by the force of metaphor. Metaphors encapsulate uncomfortable ideas, translate the unfamiliar and uncertain into instruments that appear attractive, safe and known – and so it is for the wars of intellectual property. If metaphor stands at the root of poetry and art, it also lies close to the heart of deceit. If the imagination and the human spirit must be persuaded as well as justices and legislators, then the mere acknowledgement of the existence of a public domain, and the establishment of legal boundaries and protections for it (even by the Supreme Court) may not be adequate to create the vision, public empathy, and judicial momentum needed to win over the minds of those in whom we have vested our trust to make decisions on these matters. Most legislators need to be convinced that their actions serve some useful and popular purpose (for obvious reasons). Effective lobbying depends upon the ability to convince that decisions are not made exclusively for the benefit of the lobbyist's client, but are made because they are perceived as good and appropriate and right for the welfare of society and the country. That seems obvious enough. Success sometimes hangs on creating a vision, which through metaphorical contrivance is made to look as if it serves laudable and popular ends. It may; it may not. Visions right and wrong can take root to earn popular and political approval. To reframe the maligned public domain, it will be a tough sell. Those who would be happy to devour what is left of the reachable public domain are masters at image-making; their entire industry is focused on fashioning compelling illusions that grip the popular mood. Having to fight against these forces for image dominance may be difficult, and worse, may be a sorry symptom of a cynical industry. War itself is cynical; one is reminded of Sun Tzu's famous dictum, "All war is based on deception," which might be altered for the modern age to include as well no small degree of Delphic self-deception.

As Tyler Ochoa has shown us (see above) the use of the term "public domain" may be one of those deceptions. It focuses our attention away from the public's property interest in works no longer under copyright and invests it in a theory of imprecise meaning. Were the original perception of "public property" or "common property" to be restored, he says,

then the entire public, not just a patent or copyright owner, [would have] an interest in preserving the work and disseminating it for future generations. A property interest gives each member of the public an equal right to adapt and transform the material in question, thus promoting creativity. Most importantly, if the public has a property interest in the public domain, any deprivation of that property would be subject to the Due Process Clauses of the U.S. Constitution. [n041]

Until the rights of the public in the public domain are re-established and commonly accepted, we must attempt to understand the implications and significance of the language we have been taught to use to describe it.

* * *

We are used to thinking of the public domain not so much as a legal entity, but, rather, as a boundless territory, infinite in breadth and unfathomable in the depths of its often surprising holdings. The metaphors we use of necessity seem to be spatial and territorial. They evoke a realm, an uncharted unknown expansive resource, there for the taking. These images are analogous to, and may even derive some of their modern potency from our 19th century incursion into the western territories. The uncertain existence and not fully formed definition of what constituted the public domain of the West helped open it up and made it susceptible to plunder and lawlessness – not altogether unrelated to the quasi-respectable but Constitutionally sanctioned principle of "eminent domain." A better analogy for today – inspired, truth to say, by having to watch the contents of the public domain leak out to copyright holders – comes from our revised definition of the natural environment as a precious, precarious, limited resource and habitat – of finite, if indeterminate dimensions. While any single literary item in the public domain may be "non-rivalrous," the incursion of copyright extension into the public domain has taught us that as an entity, the entirety of the public domain's dimension and scope is subject to limits, to rivalry and to absorption. The fragility of the public domain, like the natural environment, only becomes apparent in the face of impending loss. Without protection the public domain will disappear as quickly as rain forests. The Copyright Term Extension act skims only a twenty-year surface off the public domain; the DMCA, if held constitutional, will prove itself to be the real villain; it has the capacity to take hold of the public domain top to bottom.

* * *

The natural ecosystem is commonly used explicitly as a metaphor for the reconstructed public domain of created works. Today we think that the environment in which we live requires a delicate balance be maintained among the competing forces of nature – be they creative or destructive – providing natural havens where species are allowed to breed, evolve, die and do whatever else is ordained by instinct, all without unduly suffering the consequences of human domination of the planet.

We don't really think anymore that the environment exists merely for us to exploit; it is no longer a place where man has been given license to dominate without boundary. We really no longer subscribe to the Biblical injunction that "man is to have dominion over the fish of the sea, and over the birds of the air, and over the cattle, and over all the earth, and over every creeping thing that creeps upon the earth" – that is, unless we look at the covenant of "dominion" as one that implies responsibility and stewardship. Modern man now sees himself as just one element of an ecosystem in which all life in one way or another depends upon other forms of life for survival – as much as he competes with them for survival. Survival implies balance. The exceptions, of course, are both noteworthy and obvious; they are the stuff of politics and unbridled influence – as far as the ecosystem is concerned, that's another story. However, when it applies to the public domain (as "public property,") that's our story.

We acknowledge that we must balance and compensate for the needs of the domain of non-human nature with the land and resources that we take for ourselves as we fulfill our own goals and protect against the destructive byproducts of our activities – for our own good. To meet our own needs for now and the future, we must engage in a program of deliberate compensation. We acknowledge this obligation even as we don't fulfill it. Indeed, this may be the real tragedy as well within the public domain of works of creation – against our best interests, we fail to sustain and protect it.

Proponents of the public domain say that the time has past for us to look at the public domain as a place that can support the kind of exploitation in which man can seize its territories and mark them out for his sole use – claiming them as monopolized properties of his undisputed and protected fiefdom. We cannot any longer look at the public domain as a place of defect, home to castoff shards of the creative process, or as a place for plunder and annexation. Nor is the public domain the quid pro quo for copyright – just the reverse: Copyright exists to feed the public domain as death exists to feed the worm, who, in turn, nourishes the soil. This truth is self-evident to anyone who understands how the present builds upon the past.

Our understanding of the wealth held in the public domain has evolved beyond identifying this territory as the province of the "key monuments" of exploitable creations. Both the state of copyright and the state of being in the public domain must be understood as bearing the weight of both balanced and balanceable elements of a rights system that must be recognized as a necessary and mutual dependency – a symbiotic brotherhood, as it were. From a rights perspective, the public domain is a contradiction, for simultaneously it holds the record of past achievements and the promises of the future. This is a difficult concept to comprehend if you believe that it is the human creator who is to be wholly credited for his creations, with no obligation beyond what is prescribed legally to acknowledge debt to sources and predecessors – in striking contrast to the "academic tradition, in which citation to sources and predecessors is required, and failure to cite [sources] is considered plagiarism." [n042] It will take a readjustment of perspective comparable in difficulty, if not in scale, to relinquishing the egocentricity of national identity and to judging events and conditions with global outlook. Human intellectual achievements must be reassessed in a new light and be understood as episodes of a dynamic progression (if one prefers not to use the word "evolution") – one that uses the past as fodder for the future while preserving it. This is a difficult task, faced as we are with our civilization's potent Old Testament myth of creation as a God-given service to humankind – and faced, as well, with the task of having to service a nervous bottom line and the cult of private property.

VI. The Meaning of Domain [Contents]

We return now to the meaning of words. It is a curiosity of the evolution of language that words we've come to use by long-standing tradition or in conventional phrases, in unexpected ways may affect our understanding of their significances when they pop up in new contexts or when the images to which they refer have changed. Thus, as the meanings of words found in idiomatic or conventional locutions evolve, sometimes the meaning of the phrase itself changes. Or, sometimes, the opposite occurs: the phrase keeps its meaning while the constituent terms lose theirs. [n043]

This phenomenon is harder to find in certain professional vocabularies, such as conventional legal language, where meaning tends not to change and words get stuck forever bearing their archaic or original significances. There is a good reason for this, of course; legal concepts and principles must communicate constant, fixed meanings. But, in the ordinary language of social and intellectual discourse, meanings change and pick up definitions or implications to suit evolving needs. The meaning of the word "domain" in the term "public domain" yields to this kind of analysis; its sense has not yet been frozen by legal necessity. We will discover that by the time it became attached to the word "public" its literal meaning had evolved into metaphor, while the original meaning of "domain" lingered on and cast its shadow on how we comprehend the meaning of the figure of speech, "public domain" (for better or worse) as something akin to, but not quite the same as property – with substance and dimension. Thus, to think of "public domain" in a literal sense, may actually serve to compromise the concept as we understand it today. Even so, the word "domain" in its original meaning has had an important influence on our understanding of what "public domain" signifies. When in the late nineteenth century the terms "public property" and "common property" came to be replaced by the phrase "public domain," the door was opened to manipulating the meaning of the distinctions between being copyrightable or not, or between being in copyright or out of it. The term "public domain" may have been more poetic and evocative than what was in use before; but its usage served to help unravel the public's entitlement to works not subject to copyright. (See n036.) Indeed, one wonders what strategy was in play that caused the use of the word "property" to decline when applied to public holdings of works not under copyright, just as the use of the word "property" was on its ascendancy to describe works subject to copyright. (See n064.)

The word, "domain," itself, has come to connote an area (be it property or extent) over which an entity (for instance, an individual or governmental agency) has the right or authority to exert its influence. Its fifteenth-century origin signifies "land belonging to a lord" (Encarta), so the word can imply either an area of influence or a bounded area or both. As applied in the term "public domain" it can be used both ways. The term "public domain" can imply that it is the "public" who has some kind of hegemony over its contents, or it can stand for the set of works that may be used freely because they are no longer in (or subject to) the domain (or rule) of copyright (or, following Litman, not ordinarily subject to copyright). And, of course, both meanings can apply at once. When we talk informally amongst ourselves, we are not bothered by the subtleties of differences; we allow the context to do the difficult work. Thus, "public domain" can merely imply that works once held in private hands are now available to the public to see (e.g. "in the public eye," SOED), as, for instance, in the following sentence taken from a history of the Ashmolean Museum:

With the opening of its doors on 24 May 1683, the Ashmolean Museum provided a setting in which the private collection emerged into the public domain. [n044]

The problem comes when we try to understand how these notions might apply to the administration of the legal status of created works no longer subject to copyright. What we make of the term "public domain" may have a profound effect on the outcome of our efforts. Are we to construe "public domain" as a literal explanation of legal status (a "word of art," as it is called), and therefore as a concept that gives us purpose to redefine law to be true to its promise; or are we to acknowledge that "public domain" is a fanciful construct without meaning other than what is implied by the loss of copyright? I prefer to select the former meaning; it implies that the "public" is given interest in a "domain." But what does this signify? [n045]

Terms of Engagement – Administering the Public Domain

Do we really mean that the public should have influence and sway over the public domain as a whole, or does "domain" imply, instead, some kind of agreement about common rules of access to works individually. Proceeding from the definition of "domain," if we do want it to refer to "public influence," it is not clear how we'd want that influence is to manifest; nor does it nominally imply what role the public may serve with regard to the public domain – what rights, what responsibilities – if any, might apply. If rules differ nationally, would American works enter one domain, and foreign works pop into other domains? Would works dedicated or given to, say, conservancies, be in the same domain as works whose copyrights have expired? As said, we assume that it signifies, minimally, that the public has the right of access (or some kind of right of access); but, we don't know (or are not in agreement concerning) what might be the ground rules for public access – for instance, under what conditions, if any, might the public be refused access. In fact, we must also ask who is the public with regards to the "public" domain. These turn out to be two key questions with many more than two key answers. We can answer this on the basis of the status quo; but, whatever answers we might put forward, we can be assured that the confusion inherent in today's meaning of "public domain" is attributable to the process by which "public domain" as a metaphor for public benefit usurped the public's ownership of expired and uncopyrightable creations.

Because many original sources of the public domain reside in private and public repositories and archives or in private hands, the public suffers the consequences of institutionally sanctioned resistance to access. Indeed, just because a work is in the public domain, it doesn't currently mean that the public has a right of unfettered or even conditional access to that work. Remember Brandeis's qualification (above) "after voluntary communication to others, [these ideas become as] free as the air to common use." It is the public, of course, who (one way or another) is heir to the public domain; but, before the public obtains the right of access and use, works must pass through the dual legal barriers of copyright and the right of owners to restrict and control access and to authorize use.

Thus, while we tend to think that created works exist in two states:

  • Under copyright, and

  • Not under copyright,

in fact, it might be more appropriate to identify at least seven among perhaps many more states in the copyright-public domain continuum, here listed in the approximate order of increasing freedom of use:

  • Works under copyright for which license is necessary for use,

  • Works under copyright for which license is not necessary for use, as in fair use,

  • Works under copyright or not, but generally not accessible to the public to consult, as when a work is privately held and access or rights are controlled by owners of the object or owners of the copyright,

  • Works not under copyright, but generally not freely given to the public to use, as when permission to publish is extended only by license,

  • Works not under copyright and freely accessible to the public to consult, as when public domain pictures are exhibited in a public museum,

  • Works under copyright, but freely available to the public to use under certain conditions distinct from fair use (as under a public license scheme),

  • Works not under copyright and freely available to the public to use.

Still, we haven't defined who belongs to the public. Does the term "public" carry a special meaning for democratic societies? Might there be some people who have standing to access public domain materials, and others who don't. Can anyone be excluded? For instance, some libraries and some library resources are open only to members of specific academic communities and closed to non-academics or unaffiliated individuals. Assume that one such library contains a public domain book or document that would be available in an unencumbered manner to a member of that library's academic community, but not to others. Might one arguably conclude that the work is in the public domain for some people, but not for others? Under such a regime we must adjust our understanding of the word "public." Indeed, we may be forced to posit multiple kinds of domains or multiple publics. Must the law accommodate itself to these distinctions? Does the law of private ownership make a mockery of the promise of the public domain?

Even public libraries erect permission protocols around their holdings – such that none of their out-of-copyright holdings can be published for the benefit of the public domain without their acquiescence. It is not inconceivable that some uses of public domain materials would be approved and others would be denied. For instance, those who wish to develop properties for profit might be treated differently than those whose motives are more directly educational and non-profit. [n046] Furthermore, repositories with works no longer in copyright frequently attempt to restrain or prohibit their holdings from entering the accessible public domain. They do this by enveloping them in a shell of contractually determined permissions that bar their unauthorized publication. Similarly, museums frequently establish policies that either entirely forbid personal photography within their walls, or preclude photographers from using their images for anything but personal purposes. Can one claim that works such as these are in the public domain and have been wholly and freely conveyed to the public by expiration of copyright?

By longstanding convention, such exploitations of the privilege of ownership can confer de facto exclusive and even perpetual rights onto owners and publishers – perpetual, that is, until their publications enter the public domain on their own accord – perpetual, unless it comes to be understood that the act of publishing public domain materials confers no protection or only a limited protection onto their publishers. In other words, does use of the public domain and/or resources developed from the public domain impose any obligations on the user, or is the user free to do with them as she or he wishes? Indeed, as stated, currently public rights are often merely the consequence of negotiated rights. One wonders, "after voluntary communication," what rights do remain with the original? That is, upon being revealed, would it be possible (or legal) to exclude certain uses of the public domain that appear in a for-profit or even a non-profit venture? [n047]

Protection of all paper publications eventually time out, but under the regime established for on-line communications by the Digital Millennium Copyright Act (DMCA), as suggested above, a new paradigm comes into play. Digital publications, wrapped in the protective cloak of encryption – illegal to break under the DMCA without authority – may never become available for the public to access and use freely. Under this protocol, electronic publishers can at last reclaim the full monopoly once enjoyed by the pre-Revolutionary French publishing guilds. If the DMCA is eventually held to be constitutional, for electronic works the constitutional "copyright bargain" will have been functionally dissolved. Copyright (in this context rendered redundant) will no longer be needed to protect the distribution of new works, and rights from expired copyright (for having been overridden) will be unable to deliver public domain works to the public. As with the guilds, publishers will be able to control who publishes, what is published and what is republished. Most fearfully, under a DMCA regime, publishers legally will be able to control how works are used and what is said about them – even when they are in the public domain. Is this scenario merely fanciful prognostication with no likelihood of coming true? The machinery with which to accomplish these ends is now in place. To be sure, this kind of monopolistic control of content, if not now, someday will be in somebody's field of dreams. The motives and means exist; the opportunity is just around the corner.

* * *

What happens when public domain content is commingled with a unique piece of private property – like a painting, in which the original can only precisely convey the contents? Elements of this topic will be discussed in added depth, below; but here we must consider the question of boundaries. Central to this issue is determining the boundary line between the rights of private ownership and the interests of society. There are at least two questions to think about; one considers the potential obligations of public administration, and the other regards the public's right of access (to be discussed below). For the former, if the public domain is a perpetual public entity – a public trust, for instance – will the public have rights akin or parallel to copyright but exercised for the public good – in its behalf – such as the right to charge for access and to license usage. Most of us would say that such a protocol would perversely defeat the very purpose of the public domain. Most people would say, "no – public intangible elements are not owned and do not grant monopoly like copyright." The public interest in the public domain, we'd say, is not analogous to a copyright holder's interest – if anything, it is the antithesis or inverse of ownership – but what we actually mean is that the public domain bestows non-exclusive ownership. For the benefit of the public, if in the public's name we assert rights to administer and access the privately held public domain (based upon a possible response to the second question), is there a point at which the right of such access will evolve into a self-defeating close administrative control of the public domain? I doubt that anybody wishes that to happen, either. Yet, when items in the public domain fall into private hands, that is precisely what happens; private ownership and control trumps public ownership of intellectual property. Private ownership restores exclusivity to non-exclusive rights. The role of a public trust, then, is to try to prevent ownership fences from being erected around the open fields of the public domain.

Except in certain cases where public use will diminish the domain, we don't want the government to act as if the public domain is its administrative responsibility and to see itself as responsible for licensing its usage. It has been reported that Italy was considering taxing professional photographers of its ancient views, cities and architecture, under the presumption that the country has some kind of copyright interest in the built and natural environments. [n048] That would be one way to tax for use of the public domain. The administrators of native American tribal properties, who also claim the right to prohibit publication of images, including pictures of the landscape, sometimes levy the same kind of tax. This is tantamount to saying that the commons and the public domain bestows ownership rights onto the political entity that administers it – even when that political entity has no claim as creator. Would a claim as custodian be valid in such cases? If so, such would be the ultimate "copyright grab" – to use Pamela Samuelson's oft quoted apt phrase. Herein lies another paradox behind the public domain; for some purposes it is treated as if it is owned, and for other purposes it is thought of as unowned. Can the public live within the circumference of that contradiction? [n049]

Land that has been placed into a public trust can be administered in such a manner as to control how that land is to be used – such as outlawing the use of snowmobiles on it. That kind of control typically is acceptable to the public because the land is, itself, unique, irreplaceable, "rivalrous," and can be destroyed by imprudent overuse and uncontrolled pollution. This kind of land management for the public good is one strategy to avert the inevitability of tragedy in the commons. Intangible creative assets, literature, for instance, such as might belong in the public domain, generally are not susceptible to the hazards associated with uniqueness. For this reason there is no reason to control how these resources are employed – assuming, of course, that only surrogates of original items are delivered for public use. Nonrivalrous use of the public domain is therefore predicated upon the availability of surrogates for distribution and upon the preservation of original documents and unique resources.

Even when the public domain content is not enmeshed in a work that is a singleton (my term for a unique work), clearly, access rights are intertwined with ownership and licensing issues. In these cases, what, on the surface, seems to be as free as the air, turns out to be stuck in the quagmire of property rights. Even when access is given freely and clearly, our system of copyright liability sometimes demands both testimonial and legally binding assurance that a work unquestionably is in the public domain, and, consequently, may require parties to offer indemnification should that assurance prove faulty. The presence of copyright and potential claims of copyright to materials that on their face would seem unencumbered, places an oppressive, even subversive burden on the free use of the public domain. [n050]

Public Domain needs a positive spin

For the sake of the health of society, it is clear that we need to invent the public domain anew, or perhaps we ought to say that it needs to be reframed or reconstructed. In my opinion, most importantly, the new public domain must be understood to be an attractive, positive, nourishing, necessary place – where its inhabitants are not stigmatized as second-class citizens in the world of creation – a place where all of society, without regard to privilege, wealth or education has a right to reach in and discover, acquire, use, manipulate, reveal, digest and even regurgitate whatever it finds – and it should have the right to do so without supplication and without having to prove the suitability of intent. Repository walls need to be torn down (metaphorically). The public domain will then better be understood as a fertile, thickly populated place where human ingenuity, instinct and invention can have free reign to develop and grow.

While, it is one thing to envision a freedom consistent with one's ideal of a public domain; it is quite another thing to develop a "business plan" that will make this kind of information access feasible – especially in the world of institutionalized information resources characteristic of the society in which we live. Repository walls exist for a purpose, of course. Stewardship is neither a light nor an inexpensive responsibility. Those institutions charged with the responsibility of caring for our cultural inheritance (where primary resources of the public domain so often reside) are especially commissioned to balance their mission to make things accessible with their obligation to preserve them. Moreover, such institutions must heed a dire need to pay for their activities. If a repository of public domain documents cannot afford to open its doors, then, for their purposes and for those of their patrons there will be no such thing as a public domain within their walls.

Joseph Sax focuses on many of the legal, personal and psychological reasons why custodians may consider themselves obliged to refuse access to sensitive materials. [n051] For our purposes, we will limit our discussion to the issues relative to intellectual property, that is, only to factors regarding items where resistance to their free use is warranted by neutral or impersonal scientific custodial considerations. In such cases, the public domain might live and be communicated through surrogate access – reproduced for the user in whichever form may be most appropriate – being consistent with both custodial requirements and user needs. Researchers and publishers, of course, now depend upon such surrogate access, but little or no systematic effort exists to collect and distribute public domain surrogates outside of the boundary of ownership and its presumed rights. A program of collecting surrogates of public domain resources and the distribution of surrogates via electronic means – free of licensing, but not necessarily free of cost – would go far in the process of building a public domain archive for the public to use. If the public is to have the right of access to the public domain, bit-by-bit the repository must be removed as the bottleneck administering access to it. While this strategy might well remove a key source of income from our repositories, it will also eventually reduce their burdensome administrative costs. I'll leave it to others to work out the details and weigh its feasibility.

Not surprisingly, this "new" reconstructed public domain is not wholly different from the public domain implied by the framers of our Constitution, and from the one theorized by Thomas Jefferson and elaborated by justices such as Brandeis. [n052] A reading of the Constitution seems to make it clear, that (without actually saying the magic words "public domain") it was well understood that lacking the temporary grant of copyright that the Constitution sanctions, all works would exist without national protection of any sort. When the United States imposed a limit on the period of copyright, thereby creating a scheduled expiration of the condition of protection, it was understood that the status of such works no longer under copyright was not undesirable, but rather had matured into a rightful and fitting place, available to all. These works would fuel future creators and would provide the public unencumbered access to a repository of information and expression that a free society, such as we like to think ours is, needs in order to maintain and nourish the kind of informed and evolving population it requires to ensure its continued success and survival. [n053]

Copyright and patent, therefore, are engines of progress that use the public domain as fuel to be ignited by the spark of human creativity, and which, when the protected life of recent works has expired, return their products to the place that spawned them. The result is a self-renewing system for perpetuating and sustaining intellectual and practical advancement. Indeed, the architects of our republic were well aware of the importance of relying upon and using the past. Indeed, Jefferson as architect of Monticello and future architect of the University of Virginia, knew well how visual traditions, in his case specifically the architecture of classical antiquity and of the Renaissance, could be recycled to promote a new political idea.

Returning the public domain to the public is a big task. How does one re-educate the culture of "me and my" without undercutting the spirit of invention and self-promotion that is so essential to our system? Our culture's view of the public domain now is so off-center, one-sided and subject to facile manipulation, that the undertaking, in my opinion, if it is to be done at all, must be accomplished from at least three directions at once – theoretical, political and practical. We must (1) try to understand what the public domain means for our society and what functions it serves, (2) develop a national policy on the public domain, redefining in law what the public domain means, and how it is to be identified, used, encouraged and protected, and (3) press to integrate its conscious use into the daily life of education, information and creation.


VII. Public Domain Strategy: Part One: Boundaries [Contents]

Clearly, we must assert that the public domain, like copyright, itself, has dimensions and boundaries that are defined and defendable by law. Such boundaries (or spheres of interest) should impose obligations on users – takers and feeders, alike – and should be secure and stable enough to prevent unwarranted incursion and annexation by those copyright industries, the "copyright combines," the ones I like to call "Copyright Colonialists" who feel that their excursions into and exploitations of this territory ought to give them exclusive rights to their takings and virtual perpetual rights to their products. [n054] The public should be systematically protected from those who devour the public domain to the exclusion of others.

Whether their actions reflect their insecurity, or their appetite for increased profits – an economic fundamentalism that propels them on toward continual expansion – they are intent on making the public domain into their private domain. You might call them copyright imperialists or a copyright cartel. These are to be grouped with those who exhibit no respect for the "copyright bargain," who resist returning their original products to the public at the specified time. How is one to make clear to them that lengthening copyright stymies invention and creativity and the consequences of that action eventually come home to roost? Truly, they have taken the metaphor we call "intellectual property" literally, and have confused the temporary license we call "copyright" with the material possession we call "property." To save the public domain it may be necessary to erect standards so that those who want to lengthen the period of protection to prevent their own works from entering the public domain understand that the process of taking a few things for their own benefit, results in the taking of many things, many other things, from the public – a taking that results in no corresponding benefit to themselves. Benefits and disadvantages must be distributed equitably. Hopefully, the revolt against the ethics of short term gain, of "take the money and run" and "heck with my sworn responsibilities" in this post Enron age, may soon spread to the regime of intellectual property.

Above, I used the word "boundary," although the term is not quite accurate because it suggests a fixed and firm perimeter, something that can be surrounded by a fence, something tangible – like real estate with "no trespassing" signs posted. Public domain boundaries must not be hard and fast, and for that matter, only exist when "copyright" exists. The terms "prohibitions" and "obligations" or "sphere of interest" may suit better than "boundary." In any case, as for copyright, itself, they should be (as they say) "porous." In any intellectual system there will always be uncertainties that warrant special consideration. Moreover, the public domain (and, hence, copyright) has no tangible substance. Like an electron surrounding a central mass, boundaries resist being pinned down. Obscured in a fog of legal ambiguity, it is frequently difficult to determine the public domain status of particular works. Moreover, the public domain's complete contents cannot be listed; its contents defy description and extend beyond human memory. [n055] For the user, often his only certainty is uncertainty, since all use occurs in an atmosphere of risk and risk avoidance that fosters the use of guidelines to help navigate through the legal morass of public domain and copyright. Even so, it must be understood that such guidelines only exist to erect zones of safety – safe harbors for those whose use may place themselves in jeopardy – and in doing that, guidelines are usually wrong in the direction of being conservative and overly cautious. Legal boundaries should not trace the outline of the shallow perimeters of safe harbors.  [n056]

VIII. An Aside for Works of Art [Contents]

As already noted, there are some works, usually works of art, where the intellectual content is an expression formed from the corporeal matter of the work itself, and is thus inseparable from it, as a sculpture is inseparable from the stone from which it is cut. In these, unlike literature, it is impossible fully to isolate by way of replication the intangible intellectual core from its physical support or container. Unlike the written word, in reproduction, these works must always suffer some fundamental level of alteration. For these, there can be no ideal replica, only approximate and imperfect surrogates or reproductions; in a fundamental sense, they are all derivative, notwithstanding the legal distinction between reproductions and derivative works. Indeed, it has been claimed that each attempt at creating a simulacrum to serve as a surrogate for the original, inevitably only creates one person's interpretation of that original. From this, it would follow that each such derivation must be uniquely creative and for this earns its own copyright. This view, however, is suffering from diminishing support following the decision known as the Bridgeman case, which denied the above premise for those reproductions that severely limit the inventive possibilities – being straight-on copies of two-dimensional works. [n057] Be that as it may, the suitability of a surrogate image for any specified purpose must stand or fall on its own merits with regard to that purpose. For the topic in hand, to what degree, we ask, may any such a representation stand in place for an original work of art. For the sake of the public domain, therefore, almost all works of art are inaccessible by way of being owned – publicly or privately – inaccessible except by consent of the owner. For art and for the public domain, we wonder whether rights of access sometimes will have to trump the right of ownership. What function, if any, will these purported reproductions play in establishing an equitable surrogate content for that segment of the public domain made up of privately or publicly held material objects. [n058]

There are no good answers to these questions. Sometimes the intellectual property component of a unique work (a "singleton") can be (or has been) reproduced in sufficient quality to be generally acceptable as a suitable or functional surrogate for the physical object, at least for the purpose of communicating ideas about the work as might be needed in many teaching and academic publishing situations. The functionality of a surrogate potentially will be qualified by suitability for specific or typical uses. Should such an analog then, if available, be permitted to serve as a fitting low-cost surrogate for the original public domain content, and thus protect the owner from intrusion? Put another way, in exchange for honoring the primacy of tangible private property, would the availability of a surrogate image of some specified level of quality serve as an appropriate adjudicated compromise between the need of owners of private property to exercise their rights with respect to the object and the public's rightful request for access to public domain content? Put yet another way, since all reproductions of works of art compromise the original, be they in the public domain or not, is there some standard – some minimal quality of reproduction that might be accepted as a suitable representation of the original when it becomes time to serve the public domain? Recognizing that such a standard, if it be permitted to exist, may evolve through time, and may differ from work to work, and from use to use, can one suggest that any need beyond some current standard be expected to require licensing, while any need below the standard would be license free. In this way, might much of the public interest be served without upending the commercial market for use of high quality images?

But, what if no such surrogate of a privately held work should exist? Should an owner under specified circumstances be obliged to permit access to his property, at least insomuch as is necessary to produce a suitable surrogate? Because ownership is so fundamental and so deeply entrenched into the workings of our society, it is not a good idea to treat it lightly; but, should there be a demonstrable public interest, comparable, perhaps to the necessity of granting easement across private land blocking access to a public resource, such as the ocean, or an urgent need, such as to protect a work of art from imminent, wanton or unnecessary destruction, then might that right be overridden for sake of the public good? Do owners of cultural properties inherit a cultural obligation? Private property sometimes is passed from owner to owner encumbered by easements; is there a comparable cultural need to impose corresponding obligations upon ownership of art?

In the case of CCNV v. Reid, the courts acknowledged the right of a copyright owner to gain access to his work – a work held in private hands – for purposes of making a copy. What difference is there then in granting the right of access to an agency of the public in order to secure a reasonable copy of a privately owned work, the intellectual content of which is in public domain? [n059]

In the instance of CCNV v. Reid, the artist-copyright owner was allowed to gain access, understandably, because he held an ownership status; he was the owner of the copyright. How far does society have to progress to profess (and return to) a theory of the public domain that would proclaim that ownership of public domain content is vested in the public, who thereby may claim a non-exclusive ownership interest in it. The answer to that question is not clear. Reid was permitted sufficient access to produce one copy to serve as a master for others, so that he might exercise his exclusive privilege as owner of the copyright. However, if the public domain enjoys no legal status as a statutory entity and is not considered to have a vested interest in public domain works, such a right of access might never prove possible to claim. If, on the other hand, the public domain is defined and enjoys rights comparable to copyright and ownership, then under certain conditions (probably to be obtained by court order, upon presentation of a clear and pressing need), access might be permissible. For such an action to occur, the public needs to be granted standing as protector or guardian of the public domain. If the public domain were to be awarded legal status, then, perhaps limited to those times when qualifying works transfer ownership, such a transfer might be cause to initiate a process by which a useful surrogate image will be recorded and archived. Such a scheme is not without difficulties. How, for instance, is the tradition of anonymity of ownership to be respected – perhaps by taking advantage of a work's appearance in a gallery or at a public auction.

* * *

In his book Playing Darts with a Rembrandt, Joseph Sax does not directly respond to the question before us; but, we can interpolate a probable response from what he does say on the topic of the public interest in privately owned works and in the responsibilities of private owners. In the following passage, Sax is speaking of possession and ownership of that realm of objects that are immune from copyright because they embody non-copyrightable content – facts, data, ideas:

...where no labor or creativity whatever is expended, where one is simply the proprietor of an artifact that embodies data or ideas of the sort that the courts have so jealously reserved to the public, no notion of a public realm exists. On the contrary, such objects – and, in consequence, what is contained within them – are left entirely to the dominion of the owner, with no duty to make them accessible to an interested public, or otherwise to protect them. That is because the dominant modern idea of ownership is understood as entitlement to possess an object as an exclusively private thing, devoid of any public element except a broad obligation to avoid doing conventional harm such as trespassing on the territory of others. Ownership of physical things, in contrast to intellectual property, is conceived of as private and unqualified. ...in one setting after another, that conception enables owners to exercise unbridled power over owned objects, whatever the loss to science, scholarship, or art. [n060]

We may assume that the realm of which Sax speaks in this passage is to be understood as a subset of the larger group of non-copyrightable material objects that includes (although he doesn't mention it) content, once copyrighted, that has now matured into the public domain. He asserts that the right of ownership supersedes the public's right to secure access to that content and that the public realm succumbs to the right of ownership. We may assume that he would apply the same standard to all non-copyrightable material embodied in unique privately owned works. Professor Sax seems to distinguish the body of works of art whose contents have matured into the public domain from those intangible products of public domain status, which cannot be protected by ownership. One could argue – considering the group of privately owned items Sax considers – that once the data or other non-copyrightable contents are exposed to the public, the cat is out of the bag, and in such cases the owner then has no claim or control of this material as long as the authority of his control of the physical object is not compromised. Would he agree that once the intellectual property of a public domain privately held work has been reproduced via a published facsimile, the same condition applies – the owner has lost control – if not of the original work, then at least of the reflection of that original in the facsimile? It follows as well that if the intellectual property content of such an item had been reproduced before it came into the possession of the current owner, then, too, the owner would have no ownership claim over its intellectual property – at least as much of it that manifests in that reproductive surrogate. When someone acquires such a work, is the seller obliged to inform the buyer that he may not have any control of its intellectual property, as is the the rule with regard to real property? If he does not inherit full control with ownership, then might one argue that, as is the case with works under copyright, the intellectual property content of public domain works is wholly separable from the physical property of the work? [n061]

Private owners of unique objects embodying intellectual property, however, do have a duty of care. The owner's absolute right over his property is qualified, Sax maintains, by the tradition of obligation that comes along with ownership. He dates this practice back to a medieval tradition by which a custodian of a holy relic obliges himself to protect it and keep it safe from harm. In like manner, owners of culturally significant works inherit an obligation to the culture and to the works – to preserve them and to make them known. The right of ownership, though absolute by law, is morally encumbered by societal obligations. These obligations are extra-legal, as may be the punishments for violating them. There is a long tradition of private duty to the public good, one, says Sax, that "suggests how powerfully one can affect the larger community simply by virtue of ownership of an object if the object is considered important enough to the community." [n062]

Of course, we are all familiar with the long tradition of art collectors making their holdings available to the public through loans, exhibitions and bequests. One might even go so far as to suggest that part of the motive for collecting (at least in the recent past) is to demonstrate to society that the owner has taken on exactly that kind of obligation in its behalf. We need not question the motives that drive collectors (both individual and corporate) to collect or to serve society in this manner. What is important to realize is that such obligations generally manifest entirely within the confines of the ownership system. However gifts to the public travel from a private collection, to be lent, to be represented in a collection catalogue, as bequests to museums or major repositories, and so on, never, in this writer's recollection, has there been a bequest of the intellectual property content (that which is in the public domain – or slated to be) specifically to the public domain – meaning, specifically to the public, bypassing or to be shared with the intended repository. When such gifts arrive they are nearly always immediately wrapped into a contractually structured contrivance that aims to reserve the right of access and usage to the consequential owner or custodian. While the public may be given access by the beneficence of the institution in such cases, it is guaranteed neither the right access nor of use. This practice may be as proper as it is usual; but clearly it removes a foundation stone from the edifice of the public's domain. Only recently, and so far only in the realm of intangible assets, has intellectual property been dedicated to the public – as through placement in conservancy institutions. Now that works under copyright transfer title to rights and objects separately, so that institutions and repositories have become accustomed to the bifurcation, the transfer of intellectual property to public ownership (were that to occur) should be met with less institutional trauma.

From Sax's analysis (most of which is self evident to those familiar with these materials) it seems clear that, as beneficial as this donor tradition is to the aims of society, it only goes half way toward enriching the public domain. In a system such as ours, where copyright is defined and administered by law, the public, if it believes it has an ownership interest in the public domain, will have to rise to the occasion and insist that its rights be articulated. How is that to be done, and what would be subject to such a scheme? One can only guess.

* * *

One solution has been proposed by Sax, himself. He, of course, is speaking of the fate of physical objects subject to private ownership, but we can intuit a similar application applied to privately owned works in which our interests are in their intellectual property. One solution, not his favorite, is for government to exercise its power of eminent domain, in which case ownership (or just stewardship) is taken over by government, and owners are justly compensated for their loss. If applied to the works that ordinarily work their way into private ownership, or even just to a highly selected few, I doubt many would support such a program, except in those specific situations when it is mandatory to rescue a work in peril, as when a work is in imminent physical jeopardy or when an owner can no longer take proper care of a significant property (usually architecture) that has no market. Governments have also exerted their authority to prevent works deemed to be national treasures from leaving their country, a cause of action that is somewhat different in purpose, but similar in the way government can enforce its authority to serve a perceived public good. [n063]

Sax is concerned with investigating whether society has a "legitimate stake" in privately owned works that embody facts or expressions judged significant. There may be some permissible course of action that would allow society to interfere with the privileges of private ownership. Granted, Sax's subject matter is the physical material found in archives and owned by individuals – materials valuable for research – but the questions he raises make one ask whether the public's interest in the public domain content of works once under copyright at times may be sufficient to warrant making such materials available to the public freely.

Today, even the visual surrogates of public domain works of art are considered by many custodians to be copyrightable entities, a position, should it prevail, that might mean that public access to public domain content will have to wait until some photographic replica, itself, or its reproduction in a printed book, becomes public domain. The watershed case of Bridgeman v. Corel, cited above, may ultimately come to convince image holders that many such "direct" reproductions of public domain content are uncopyrightable. Even so, access to publishable images is not eased by public domain status since they are usually available only through contract and licensing, the purpose of which is to control the right to publish. How is the public domain to be liberated from such contrivances? Here, a grant of publishing "privilege," a temporary right, may offer a solution: a short period of reserve, not so long, inclusive or wide-ranging as copyright, but yet long enough to protect the photographer's investment and to provide ample but limited time to exploit the market for reproductions. Creating such a "privilege," in return for which licensing after expiration would not be permitted, as privileges expire, might supply enough stimuli to encourage the creation of new higher quality reproductive works, as technology permits. In such an hypothetical post Bridgeman era, the older (probably outdated) photographic reproductions might then be obliged to serve as surrogates in the public's public domain. A public institution, such as the Library of Congress, might be encouraged to make such resources universally available, as they already do in select subject fields.  [n064]

IX. Leakage, Porosity, Permeability, Osmosis [Contents]

Jessica Litman has argued convincingly that what we mean by "the public domain" is not necessarily limited just to those works that have run out of copyright protection. [n065] Hers is an expansive interpretation, one that includes all those uses of works still under copyright for which permission should not ordinarily be required. Included are materials such as short quotes, facts, and works used for education and comment. Using today's terminology, to accommodate these works, we say that the borders of the domain of enforceable copyright are porous. The term commonly used to describe the effects of "porosity" is "leakage." However, "leakage" is best understood as a pro-copyright-oriented reconstruction of a phenomenon that pre-dates copyright itself; we name it with words like "borrowing," "sampling," "influence," "variations," "adaptation," "inclusion," "interpretation," "inspiration," and "criticism." "Leakage" is both natural and crucial to the development of new art and expression. Our copyright culture, however, disfavors this form of uninhibited, unaccountable influence. Copyright culture is more aptly suited to publishing models than it is to the development and distribution of music and art, and deeply suffers from an inability to distinguish them. [n066]

Accepting the implication of the pro-copyright construction of "leakage" presumes that you accept the belief that the borders of protected intellectual property should be secure and inviolate; indeed, it presumes that borders ought to be precise and defendable. In this model, the state of copyright is less of a domain than it is a fortress. "Leakage" is another example of a name that relies on metaphor to prejudice understanding. These formulations respond to owner desires, and serve as "no trespassing without permission" signs to users – they promulgate the belief that copyright is property. Using the term "leakage" is tantamount to accepting the argument that what is excusable under "fair use" is merely "market failure," or the inability to catch all copyright transgressions. It, therefore, provides the rationale, as manifest in the DMCA, to close out all possibility of exercising "fair use." [n067] Once the myth of the hard copyright boundary is exposed, owners should understand that there is leakage, and should be leakage into what Litman calls the "public domain." Terms like "market failure" and perhaps even obliquely, "fair use" in this sense derive from the fortress mentality of copyright owners; use of this kind of terminology should be accepted as evidence that the copyright system has failed to comprehend the source of its strength, and has failed and will fail, if left unchanged, to acknowledge its debt to creative spirits, past, present and future.

Copyright is an artificial or made-up scheme that endeavors to wedge real-world uses of intellectual property into an awkward, but mostly serviceable economic model. All such models are abstractions, which, when turned into dogma, ultimately corrupt the value system they attempt to administer. Thus, if the domain of copyright is a convenient but sometimes arbitrary abstraction, the common definition of the "public domain" – the one that implies that it has been derived from "copyright" – is also an abstraction. The expected definition says that the "public domain" contains all those works not under copyright. [n068] But, as we have seen, the functional public domain – the way it works in real life – is quite different from the public domain as defined in the dictionaries, since so little of what has no copyright is freely available to the public. The implied parent-child relationship is another metaphor that places copyright up on top. We are led to believe, wrongly, that copyright is the mother of the public domain, when in fact, in the long run, it is the promise of the public domain that makes the institution of copyright a worthwhile endeavor.

The public domain, arguably, historically preceded copyright; but, under this revised definition (i.e. "not under copyright"), the public domain is recast as a consequence of copyright – works "fall" out of copyright. Our current definition inverts the historical truth. Within the current understanding of public domain, Jessica Litman's notion of an expanded public domain makes perfect sense and the apparent complexity disappears. Although she puts it forward as a definition that is good for copyright (and I agree), what it does, in fact, is to reconstruct the public domain more or less as it was first understood – or better put, as it existed even before understanding. The term "leakage," therefore, turns out to be just one more of those little metaphoric assaults on a valid public interest – one that taints perfectly acceptable practices with the smear of a presumed injustice. In copyright jargon, the word comes pre-loaded with a culturally sanctioned point of view (like "piracy" and "theft") and is used to stack the deck against those who see the membrane separating the realms of copyright and public domain as osmotic by nature.

The public domain, then by definition, is also porous – an appropriate word if it did not also sometimes imply "leakage," as when nations can't secure borders that are supposed to be tight. What we have learned is that both the public and private domains of intellectual property are not analogous to domains of state. What we are looking for is a word like "porous" without the implied moral pejorative. Perhaps one should rather say that the public domain should offer minimal resistance to its use while copyright should present significant resistance – maybe "permeable" or the already-mentioned "osmotic" would be better. Permeability is an ideal, of course, one that is compromised in real life. As Joseph Sax has recounted, by guarding access and by establishing tolls in the path of obtaining access to public domain originals, libraries and private owners create walls dividing the public from the public domain. We might call this phenomenon "access resistance." And this is followed by what we might call "usage resistance" – the cost of and impediments to using what is being made accessible as copyright expires.

* * *

"Access resistance" (for want of a better term), as I'm using it, signifies the efforts made to limit or control access to people who want to consult or use works of art or resources. The valid reasons we normally expect to find for this are those concerning the indisputable, but occasionally over-enforced need to prevent overuse of a valuable and fragile original. On occasion, I've been told, some repositories will even surreptitiously exhibit or present fine facsimiles of drawings and manuscripts, rather than originals for viewing – even to scholars, who may earn respect by recognizing the ruse. Access resistance would also include the cost incurred in obtaining a usable copy of the original. As already noted, sometimes repositories will serve only those whom they consider serious researchers, or those who have credentials appropriate for the level of work in which they are engaged.  In any case, repositories should provide some means of easing access to works in the public domain (and to copyrighted works too). Refusal to permit access for the purpose of controlling holdings or limiting comment is not acceptable, and, luckily, is more rare than common, despite all the documented examples of proprietary intent and special personal cases one encounters in Joseph Sax's volume.

It is "usage resistance" that exposes the heart of public domain management issues. Once access has been obtained or a reproduction secured from a museum or repository, the right to use public domain content of visual works is rarely freely given. This topic has been touched on before, so it need not be repeated, except to note, additionally, that some repositories believe it is within their mission to protect a work's reputation, to project their views of a work's significance (to the exclusion of other views) and to make certain that the historical integrity of a work (as they see it) will not be betrayed by a user, which typically is expressed as a ban on commercial use and parody, but may go so far as to require that an author agree (in print) with the museum's attribution. This kind of content control (although it is easy enough to respect the motives for some of it) is inconsistent with the promise of the public domain and the rights that flow from a work's public status.

In this sense, one can imagine (correspondingly) some permeability in the domain reserved for free access to the public. Usable access to the public domain won't necessarily be free, hardly anybody expects otherwise, but it should at least be freely available. Just as it usually costs money to obtain a facsimile or a publication of a public domain work of literature, it might frequently cost money to purchase a respectable surrogate of a public domain work of art. What should be free, ideally, however, is the right to reproduce or manipulate that surrogate, once obtained – copyright claims in that surrogate notwithstanding – if the surrogate is free of significant originality. One might draw a potential exception to this to account for the kind of "privilege" for newly republished works I've suggested elsewhere. Otherwise, "usage resistance" should be close to minimal. Unfortunately, just as the copyright industry has redefined the institution of copyright as a closed enclave fairly well insulated against unlicensed usages, the repository community, with few exceptions, in order to contain "leakage" has built a hermetic seal around its public domain holdings. In both cases, the public is the loser.

"New works fashioned from old and old works for their own sake," should be the mantra of the public domain. New derivative works deserve copyright. Those who fashion the public domain into new forms, be that a collection and/or selection of public domain items or a retelling of an old story, or a new setting for a public domain work, obviously deserve protection. Just as incentive is required to help produce new works, so it is needed to serve up and distribute the public domain. But the degree of protection granted to untouched reproductions and compilations of public domain materials should be reduced, if at all needed, to a shorter period – in this paper dubbed a "privilege." This seemingly retrograde idea might be difficult for some to accept. Perhaps "privilege" should be granted on a case-by-case basis upon application. However, nobody expects access to the public domain to be wholly friction free.

What kind of encouragement must exist to make people want to find and serve up useful items from the public domain with the intention of making them available for general unencumbered use? Of course there are the bands of yeomen volunteers in each interest area who collect public domain materials and publish them on the World Wide Web. These communities need to be encouraged in ways the recounting of which are beyond the scope of this paper. We should not take these projects for granted, but see in them important grassroots efforts. But, in addition, might it be necessary to offer some kind of incentive to those who wish to reproduce the hidden public domain (the substance of which is narrowly distributed), as is? Considering the role copyright plays in providing incentive to creators, one could easily conclude that those who publish out of the public domain need protection that echoes the kind of incentive that copyright offers to creators. Until now, those who "republish" the hidden public domain in facsimile (and this includes literary works as well as images) expected to be protected by the full force of copyright, by the contrivances of rights management and contracts, or simply by the likely lack of competition. Today, contemplating the potential effect of the Bridgeman decision, some publishers may be asking themselves whether there is going to be sufficient payback for the effort to make the public domain accessible. How does a publisher of, say, facsimiles of public domain items protect his investment, and yet stay true to the promise of the public domain. It looks like there is a paradox in this somewhere.

Many of these paradoxes exist and will have to be solved. Not all publishing models are the same, however, so solutions may vary. For instance Dover Press publishes public domain compilations with the expectation that their images will be copied (but claims to protect the work as a whole). Other publishers aiming to meet the archival needs of, say, research libraries, find security in a different model. The lead-time needed to bring such projects to the public is sufficient to keep competitors from entering and absorbing a limited market that may evaporate when the first edition appears. Flooding the market with too many copies of the same title could be ruinous for all publishers. In these cases, copyright protection or a guarantee of privilege will not necessarily serve a useful purpose. Still other publishers will add copyrightable prefaces and annotations to a facsimile copy the value of which is thereby increased, and in this way expect the work as a whole to be protected by copyright. [n069]

If the economics of producing physical copies of specialty books mitigates against the efficacy of copyright, publishing strategies associated with digital production sometimes tell another story. Where is the balance point, we ask, at which initiative is protected and freedom of access guaranteed? Above, we discussed the economics of protecting editions, but how does one satisfy the demand for high quality professional publishable images of public domain works and protect the endeavor? To solve this problem, reproductive photographers might be granted a limited franchise on their current productions, while non-profit and educational users might be given the right to copy and use the published images (i.e. the set of lesser-quality second-generation images) shortly after publication, or at any time when fair use warrants. Such an arrangement would guarantee some protection for commercial use of high quality original photographs. Such images are expensive to produce and might be reserved for high-quality publishing, while permitting less demanding applications to use lesser quality versions of those photographs of public domain items.

Schemes should be devised to create repositories and clearinghouses for public domain content. A project such as the recently conceived site-licensed Mellon program dubbed ArtSTOR, an online collection of public domain images, which promises to be invaluable for teaching and research in the history of art, when viewed from inside academe looks as if it is proceeding in broadly useful directions. When viewed from the world outside academia, however, especially from the perspective of the public, which includes independent and unaffiliated scholars, such projects are generally unavailable, and therefore, for all their efforts, appear to offer nothing new and nothing useful. More to the point, it begs an answer to the question: "What is public about the public domain?"

X. Discussing an Agenda [Contents]

Clearly, the public domain and the regime of copyright have to be rebuilt and redefined in such a manner as to make the distribution of benefits more equitable. Ironically, this procedure will most likely entail reviving and reconstructing the kind of public domain implied by the Constitution. Foremost in the agenda I envisage is vesting the public (individually and as a class) with the standing necessary to represent its interests in the public domain in courts – to define and defend the public's proprietary interest in the public domain as a public asset. To do this, it may be necessary for the public domain to gain some kind of status as a public or conservancy trust. Equally as important would be an effort for government to support the maintenance and development of the public domain through mechanisms of tax incentives and other utilities and resources, comparable in some ways to how it takes care of the national park system and aims to protect environments in peril.

In the following list are a few examples of varying worth (some crucial, some unlikely, some admittedly whimsical, some obviously self-contradictory) of the kind of changes and incentives that might be employed to enhance the visibility and utility of the public domain. Some of the suggestions have already been mentioned. They are offered here, certainly not as a consistent agenda, but as points this author consider worthy of further discussion. While some of the ideas cited here might be considered regressive, they might yet open doors leading to workable compromise. In any event, they are intended to stimulate thought about processes and methods useful for revitalizing the public domain. The overall goal of these points is to increase access to and use of the public domain without destroying the incentive to deliver and promote its contents, and without destroying the income that repositories need raise to help support the costs of their stewardship. Just as importantly, it is vital not to wipe out the incentives given to creators by the copyright system. The key to success is an ancient one: moderation in all things. It might be best to read the following points as if they were suggestions coming from assembled members of an audience in a non-specialist's conference on the public domain.

  • Public domain content should never be continuously protected, be that content retroactively moved into the domain of copyright, enveloped under contract, distributed under site-license, hidden encryption or by the kind of database regulations that are currently under consideration that enable protection by continuous renewal. At some point all private claims must cease. Properly, to protect the public domain from "enclosure" requires there be a "bundle of rights" for the public and perhaps a bundle of rights for republishers of the public domain that are similar to, but do not necessarily replicate the rights of copyright owners. These user rights will determine how works in the public domain are to be delivered to the public. Public rights should guarantee public domain content for whoever needs it.

  • Fair Use of copyrighted works must be redefined. What we now consider "fair use" should rather be understood as a conditional element of the public domain. The term "fair use," as now used, is a construct that places the onus of proof on the user and presupposes that copyright has primacy and that the copyright owner deserves more protection than the public. Currently, fair use is an affirmative defense to infringement, which means that an alleged infringer must prove that the use was fair – infringement is presupposed. In the future fair use should be a presumption – making the rationale for the public domain primary. This would mean that those who suspect infringement would have to prove the infringement and that the usage is not a fair use, instead of defendants having to prove that it passes as an excused use. This strategy would operate something like the presumption of innocence. This would also mean that instead of trying to fit a use into the four fair-use criteria – the rather foggy safe harbor of the copyright act – the copyright owner would have to prove 1) that the use was economically disruptive to his value in copyright, 2) that it did not benefit society through commentary or education, and, in addition, 3) that the use invaded the heart of the work and was not transformative. [n070]

  • Copyright owners should not be permitted to honor or refuse requests to publish on the basis of their assessment of the user or writer's point of view. Refusal to permit reproduction for this reason, or, for that matter, for any reason, should automatically invoke some kind of compulsory license mechanism or qualify as a fair use that cannot be challenged. No request to publish a public domain image should ever be denied or restricted.

  • Under certain circumstances, copyright might be considered to have been abandoned, and while abandonment shouldn't necessarily be equated with qualification as having fallen into the public domain, it might be held as a factor predisposing a work as subject to fair use or some other form of de facto permission. For instance, works published under copyright often go out of print before copyright has expired, and the copyright owner has either disappeared, become lost in a labyrinth of corporate takeovers, or for some reason has refused to bring out a new edition to satisfy demand. Such works might be susceptible to qualifying for a kind of compulsory pro-forma license. Why shouldn't such works be available to reissue under special circumstances if someone thinks it worthwhile. There might be conditions for republishers to meet, but why exclude them just because they are using works technically under someone else's copyright. If a lost owner should eventually appear, he might claim his reserve. After some specified time, unclaimed royalties might be dedicated to maintaining public domain resources (as unclaimed bottle deposits are used to feed conservation efforts), build indices or returned (in part) to the republisher.

    In the same breath, one might say that there are certain works in the public domain that need to be reissued in facsimile – like Renaissance books, and similar important but sparsely distributed or unique primary materials. What protection, if any, would a publisher need to allow him to recoup his costs and make some profit if anyone could copy and distribute the whole or a substantial portion of his book at will? I wouldn't go so far as to suggest awarding full copyright status for a public domain facsimile, but perhaps some optional period of protection would be appropriate for the work as a whole, or as a distributed compilation. One needn't call it "copyright," but (as already noted) one might borrow a term from the sixteenth century, and call it a "privilege." Such privileges might last long enough to fulfill the current or projected demand for the work or last until some portion of the first printing has been depleted, or for a fixed (limited) number of years. Already one sees complexities: The above sounds like it might conflict with the Feist decision, which held that factual works are not copyrightable. In this case it would hold that public domain works (without creative input) are also not copyrightable. This might be a good topic for further discussion. In a legal sense, aside from the application of moral rights (not relevant here), are there differences between noncopyrightable "factual" works, and creative works that have matured into the public domain? In the world of give-and-take, awarding a non-renewable privilege for expensive-to-produce factual works and public domain items might serve as a workable compromise to be used in exchange for a more assertive version of the public domain.

  • When the copyright registration requirement was rescinded in the United States, works were awarded copyright status as soon as they saw fixation. The consequence of this change is that there are millions, if not billions of works formally under copyright whose authors never envisioned any eventual utility for them, may have forgotten about them altogether, and may even be unable to identify them as their own. (Even Picasso had that problem!) They exist undated, unregistered, and without any clue to the identity of their makers. The administrative dilemma caused by the lack of a registration requirement is obvious, Should such a work need to be published, there is no way to obtain permission, and without permission, few publishers will allow such works to appear on their pages. Consider the case of a scholar needing to publish selected anonymous family photographs, such as those obtainable from the ubiquitous thrift shop. Scholars, especially, are caught in the permissions trap created by anonymous works such as these. A compulsory license scheme to cover these uses may prove useful and may, if properly administrated, provide funding for developing public domain resources.

  • Of course, there must be legal defenses that prevent the kind of one-sided invasion characterized by the Sonny Bono Copyright Term Extension Act. We acknowledge that the metaphor of the public domain as a bounded domain, clearly is vague, misleading, partial, compromised and defective – a poor metaphor, really, for while it implies rights, the image of boundedness it offers is deceptive in its presumed clarity. Unlike real property, it is acceptable to invade the public domain; indeed, that is exactly what it is for; but it is for use by everybody, or anybody (without regard to motive), and nobody should be able to corral the public domain, to privatize it, to transform it into a rivalrous territory, to make markets by obtaining monopolistic grants that defraud the public of their rightful access to its wealth of resources. If man is a monopolizing creature, it should be the role of government to protect society from his excesses. While the well of intellectual property cannot be emptied; individual works are susceptible to the will of those who seek monopoly.

  • The public's rights to the public domain should not be considered less important than the rights of copyright owners to the domain of their personal copyrighted works. Just as statute gives owners of copyright exclusive control of a "bundle of rights," so should access to the public domain be controlled by rights secured for the benefit of those who wish to use it, with (we should not fail to mention) rights that protect its content for use by all. In this regard, we must accept that the public domain is in reality a kind of public trust, one that can be (and probably must be) defended and protected for the benefit of the people, much as the government defines and protects the right of copyright. [n071]

    We already think in terms of public trust when we consider the fate of public resources, access to watering holes, access to the ocean across private beach property, commercial and residential zoning, land on which to build highways and low-income housing, preservation of first-growth forests, the creation of historical or land-marked districts – all of these are examples of government justly defining limits to the rights of private property or taking possession of it for the public good. People are required to give up their exclusive rights as owners in those unusual circumstances when the public interest exceeds the right of private persons to exclude the public. Why is the domain of expired copyright any different than the public sea that must be administered and protected for the good of all? Taking the long term into account, for the public benefit we control and limit both commercial and sports hunting and fishing and thus control how private individuals engage with what we consider public resources.

    In the realm of intellectual property, it is easy enough to grant access to public domain works, the contents of which are represented through symbology – where the original work need not be reproduced in visual facsimile – these for the most part being literary, mathematical or (to a lesser degree) scientific works. Certainly nobody can take control of Leaves of Grass or Moby Dick in such a way that they monopolize all access to them. A work of literature, for instance, a poem, once published, therefore can be copied ad infinitum, so that each copy, in itself, becomes its own essence and its own presence, a potential source for some future publication. One cannot intentionally damage the original in the copy (except in editing). If someone publishes a new edition of Moby Dick, they haven't removed anything from the public domain – the original in tangible and symbolic form is still there. And yet, there are examples of works from the public domain, taken from a free archive, published in electronic form that, by contract, limits the user's right to copy, quote, or even to read the item out loud. It is reasonable to expect that public domain works should be made publicly available without substantial or unreasonable limitation. It does not serve the public good to allow works that are "non-rivalrous" by nature to be distributed in such a way as to limit access to them – unless what is being sold is access to the system of access and not the works, themselves – in which case the works (as works) should be free to copy and distribute.

  • Cataloging the public domain as a whole is not really feasible; but the idea offers some interesting possibilities. For instance, the Copyright Office administers a list of registered works under copyright. The copyrights on these works expire. Why should not, at minimal, the works so registered be used as the basis for a list of works in and coming into the public domain. If you can register the date of creation of a work or its date of copyright, why not record the date copyright is expected to expire – and do it at the moment copyright was registered. Such a database can easily account for any changes in the law that governs copyright expiration. But, hopefully, there will be no more retroactive extensions to copyright. The DMCA makes it illegal to delete or altar copyright information in an electronic environment. Why not include the date of expiration of copyright in databases and other online properties in much the same way. Works appearing under multiple dates of copyright should not be allowed to protect the earlier parts under the dating of the newer parts, except as compilations. Does MARC have a searchable and sortable tag for an expected date of expiration of copyright? My sources say that it doesn't; it should. [n072]

  • The U.S. Patent Office keeps copies of all patents. Once a patent is awarded, anybody from the public can obtain a copy; once it has expired, anybody can employ the patent. Patents offer a high degree of protection during their lifetime. Cannot a similar system be set up for copyrights? Perhaps registered copyrights of works on file can be given considerable protection, supported by an annual fee, like automobile registrations. But once in the public domain, the copyright office should make the substance of these copyrighted items easily available. Registered works with no deposit and unregistered copyright might receive progressively less protection with the least protection given when it is difficult or impossible to determine an accurate date of creation and/or identify a creator. It makes sense to offer degrees of copyright protection in proportion to a creator's demonstration of expectation of return. Returning to an initial short period of copyright, followed by a renewal period for a longer term, to be accompanied by higher fees and/or maintenance fees and deposit requirements, might serve the need for enriching the public domain early and fulfilling a creator's desire fully to exploit the financial rewards that might accrue from a successful product.

  • The Copyright office of the United States is invested in registering copyright, and in fulfillment of this mission, provides the resources with which to understand and facilitate its administration. As such, it now appears to serves as a union hall for the copyright and licensing industry. One does not see coming from that agency much of an effort to protect the public domain or to lobby for the rights of the user. What might be needed, therefore, is an Office of the Public Domain that will support the rights of the public and provide the tools and agenda to ease public access.

  • Today there is no standard by which an earnest but failed effort to uncover the copyright status of an item has any bearing on that item's use. Refusal byf an owner to supply copyright status of a published work in a reasonable timeframe or to respond to a request for publishing rights should be taken as unwillingness to claim copyright ownership over that work. Standards must apply to an earnest attempt to obtain user rights to works under copyright. Unwillingness to claim or act on copyright should be accepted as cause to treat a work as if it is public domain.

  • A protocol and legal registration procedure might be developed that would provide means for individuals to dedicate works to the public domain. Copyrighted works with proven value, if dedicated to the public domain, might entitle their owners to some form of tax credit or deduction. Works so dedicated to the public domain should be identified by a permanent credit line – just like museum donations. Alternately, for works still under copyright, the General Public License protocol might serve as a standard. If a United States tax deduction is received for a work so dedicated, perhaps its destination should not be to a public domain as defined in this article, but to a US trust or conservancy where it would be free to use if published in the United States (or by US publishers) – until the original term of copyright expires.

  • Unconditional donations of works of art and vital manuscript materials to the public domain that are accepted by reputable archives should be rewarded with tax deductions that are higher than those received when works are given to non-profit archives that maintain and control rights to license public domain content.

  • Florida, and perhaps other states, tax "intangible property," typically the value of stocks and bonds, but why not also tax other intangible assets of proven worth, like copyright interest. Naturally, public domain properties won't be taxed, and that would establish a countervailing interest in keeping the duration of copyright short – at least for works of real, but minimal value. Taxable copyright value could be made to depreciate with age (for tax purposes) and people might be allowed to claim a tax break for donating their IP to the public domain ahead of schedule – accelerating the value of their depreciating assets.

  • Is the value of intellectual property included in an individual's estate? If so, perhaps a scheduled donation to the public domain could serve as a deduction for the purposes of computing estate taxes. In this way, by providing incentive to limit the power of heirs, copyright culture may be enriched. Owners of art are no longer allowed to donate works to museums, take their tax-deductible donation, and retain a life interest in them; but they may be allowed to donate the public domain content separately from the work itself and receive a corresponding tax benefit before they die.

  • Public institutions that accept tax-deductible donations containing public domain materials might be encouraged in some form to dedicate that content to the public domain – perhaps under pain of losing some elements of their public status. One option would be to diminish the value of the deduction when institutions are given permission to control the distribution and publication of the donated intellectual property; this might be read as a for-profit activity – like the museum store. Losses from services provided to scholars and education may be subtracted from profits received from a museum's commercial activities. Public institutions directly supported with public monies should be required to develop a comparable public domain policy.

  • Public museums frequently place their holdings in the name of their trustees – a process that insulates physical collection assets from the political will of the public (a good thing), essentially keeping them in a private trust – an unnecessary contrivance when it insulates the intellectual property assets. Public support of such museums might be increased if the intellectual property thus held is dedicated directly to the public domain, or decreased if not. Or, holdings in the name of trustees should not be considered wholly private.

  • When a public domain work of art is given to a tax-deductible public institution, the tax laws should distinguish between the value of the object and the intellectual property component. Donor's who require that the public domain content be dedicated to the public should receive larger tax deductions. An aside: The museum lobby in the United States is quite strong and influential. It is unlikely that any of the above tax-based suggestions will meet with much support from that quarter.

  • Databases that contain public domain works and works still under copyright should be produced in unencrypted dated editions and sent to secure public repositories, perhaps to the Library of Congress. A registration and maintenance fee will help secure their availability in the future. When these databases mature into the public domain, or if their publishers discontinue them, they should be made available – edition-by-edition. Conditions of access will then not prohibit use of individual public domain documents contained within the database. Perhaps, encryption on works should be made to self-destruct when copyright or "privilege" is set to run out.

  • Our copyright culture has created an industry of people who protect copyright, who serve copyright owners and help them achieve their copyright goals. There is much money to be made in protecting economic properties, and little to be made in protecting properties of lesser financial value that suffer from a lack of protection or patronage such as is found in the public domain. To counter unjustifiable excesses, database and copyright owners should be severely penalized for asserting over-reaching unfair and unbalanced claims and should be fined for fraudulent claims of copyright. It is time for distributors of copyrighted materials to engage in a certain measure of risk analysis – just as fair users must. (Section 506c of the US copyright code already makes fraudulent copyright labeling illegal. This section should be enforced. Now that marking is no longer required, willful fraudulent and deceptive copyright claims should be made illegal.) Fines should be large enough to serve as a reasonable deterrent and when assessed should help fund public domain projects. Think of overreaching claims as a kind of pollution of the public domain, either that, or as a fraud against the commonweal.

  • A portion of copyright registration fees should be dedicated to maintaining public-domain access information.

  • Warnings to the public, such as those found on videotaped movies or on the verso of a book's title page that misrepresent the rights of the user, misleading the reader, and overstating or obfuscating the rights of copyright owners and/or users should be banished. The public should not need a law degree to understand what their private and personal rights are with regard to items they purchase. Thus, there should be specific acknowledgement of the rights of the user (including the fair user) that is placed next to a summary of the rights of the copyright holder. It should not be considered a right of free speech in such cases to mislead.

  • Archives and museums often stand in the way of facilitating access to the public domain by transforming tax-deductible gifts into a kind of private property. Using a combination of access rules and contractual agreements, these public domain materials suitable for development are held back from the public. When they are made available, cost and consequential price and a layer of copyright claims remove public domain materials from the public domain. But not all repositories are the same. Lists of cooperative repositories should be maintained. Publicly supported enterprises should focus on collecting usable versions of works offered for license by repositories.

  • The fees charged for licensing any particular image surrogate for publishing might diminish with time on a sliding scale. Such image surrogates should be donated to public domain repositories after a certain number of years and/or when they are replaced with new images. A program of this sort will encourage the production of new, more accurate and modern images for commercial use, and provide passable images for second-tier uses.

  • Organizations that site-license public domain content should be obliged to create a site-license user group that accepts any individual upon application, and the per-person fees pertaining to their usage should be comparable to those charged to other group subscribers.

XI. Public Domain Strategy: Part Two:
Using the Public Domain

The second arm of the strategy to develop a strong public domain is to teach its usefulness by example. In our information age the public domain should be viewed as a natural resource. The government and other entities, therefore, should make special efforts to create and provide access to public domain resources that will be available to any seeker. The Library of Congress, through the World Wide Web, is a natural outlet for this kind of project. Its own public domain collections should be made available license free to the public wherever possible and should be so identified. It, and other like-minded repositories, should accept and solicit donations expressly for the purpose of feeding public domain resources to the public. Of course these kinds of activities are becoming ever more common; but, in addition, there should be menu-type overlays to make these materials accessible and their public domain status obvious. [n073] This last point is especially important because people should know when they are using the public domain, just as they are told when they are using copyrighted materials.

Every day we seem to encounter a new or promised source of public domain materials on the web, but they tend to be ephemeral. Projects such as these make a big difference; but what is missing is stability and roadmaps to lead people to available resources and online guides to help users find what they need. Even though web search engines may prove helpful, they are not dedicated to finding public domain resources and lack the intelligence of good subject editors. The condition is akin to having a library without a systematic catalogue. Obviously, these tools cannot be left to the for-profit advertisement-driven Internet indexers to create since their life depends upon the health of the market that created them. Resources should clearly state that their contents are presented with no claim of copyright, and that they contain public domain materials or that their creators have given their materials over to the public domain. Copyright status should be a search field supplied by library OPACs and repeated in other search engines.

The contents and identity of the public domain may seem impenetrable and confusing, with no guideposts, much like a jungle or swamp, or like unexcavated ancient civilizations. Without paths and roads into it only the adventuresome and persistent will bother to enter. For everyday use, the public domain will have to be given a useful structure suitable for logical access and for thematic exploring and searching. Links guiding researchers to public domain resources should be at least indirectly accessible from the forefront of every public and university library resource web-page, and these should be organized with users in mind, with special categories and resources for school use and for the kinds of interests public and academic libraries aim to serve. Public domain resources should identify themselves as presenting the public domain and should prominently explain their purpose and the rules for use. Organizations, such as professional academic associations, should maintain web pages that point to relevant public domain indices and resources. Today there are many discipline-specific guides to the Internet made for use by students, teachers, researchers and the public. Rarely are these tools identified by copyright status – even though that kind of information may prove valuable to prospective users. When a resource is dedicated to the public domain or collects public domain materials, it should be identified as such. Acting on these ideas will encourage use of the public domain and will ease the concerns many users encounter when attempting to reuse Internet content. Children and older students should learn how to access and use these resources so that the public domain becomes almost as instinctive to use as, say, encyclopedias and dictionaries are today. Our educational system must convince students and researchers that there is more of interest in this world than the highly promoted, costly, fabricated commercial products of today's synthetic information infrastructure – even though their allure may be nearly irresistible. It would not hurt if teachers and professors discuss or mention intellectual property concerns for researchers in the course of their academic offerings.

In addition, public domain advocacy groups, and groups with related agendas such as Public Knowledge or the Creative Commons should attempt to get their programs and achievements promoted through structured access tools that lead to public research institutions – the public and academic libraries cited above. The Copyright Society sponsors a "Copyright Awareness Week." Organizations dedicated to developing public domain resources might sponsor a "Public Domain Awareness Week." The Copyright Office maintains helpful links to copyright licensing organizations and Publications rights clearinghouses. They should also list organizations that help serve the public domain.

For years the copyright industry has wanted to teach respect for copyright. That is a tough, even preposterous task if begun so early in the educational process that children instinctively know that if you have a work before you, you may use it any way you choose – all uses, no doubt, being fair uses. All copyright information then becomes useless information. But at some point in the maturation process, rights education will become a necessary task. Along with "respect" for copyright must also be taught that copyright, in turn, must respect certain creative, social, educational and free speech applications of protected works. If we are to teach that copyright is to be respected, at the same time, we must make clear what rights persons have with respect to using copyrighted materials – not only for their own personal use, but for a host of educational, creative and critical uses, like news reporting and criticism. Further, it should be made clear to copyright holders – especially in this digital age – that the kind of paternalistic colonial attitude that is expressed by cutting into the rights of users through encryption, unreasonable contractual obligations, mischievous metaphors, and other schemes that attack the principles of access and usage we have learned to take for granted, will not be condoned.

What is the best way to teach respect for copyright? The best way, as I see it, is to teach respect for the public domain and for user rights. Once people understand how much and what kinds of things freely belong to civilization, once they understand where these materials come from – that they come to the public first from the creative urge and then from expiring terms of copyright, and from the exceptions to copyright – uses that should be encouraged as well as condoned – only then will it be possible to teach and learn respect for the realm of copyright. In fact, once people know how crucial is the role of the public domain to the pool of creations that exist as a consequence of copyright, and once they learn how our array of intellectual property laws rooted in our Constitution encourage creation, then people will not only learn respect for the copyright principle, but copyright will have earned respect on account of its role as a force responsible for the continuing renewal of the public's domain.


Notes: [Contents]
go to: n010, n020, n030, n040, n050, n060 n070

Note 001: Metaphor's ability to define it own reality is expressed in the header quote by Edward Rothstein and in the following passage from Mark Stefik's, Internet Dreams: Archetypes, Myths, and Metaphors (MIT Press, Cambridge, MA, 1996, p. xvi): "The metaphors we use constantly in our everyday language profoundly influence what we do, because they shape our understanding. George Lakoff and Mark Johnson [no citation] say that metaphors are pervasive because they reflect how we think, perhaps embodying deeply unconscious archetypes of personality and vision. When we change the metaphors, therefore, we change how we think about things. Because metaphors can guide our imagination about a new invention, they influence what it can be even before it exists. The metaphors we use suggest ideas and we absorb them so quickly that we seldom even notice the metaphor, making much of our understanding completely unconscious." This highly perceptive passage differs from the thesis developed in the article before us only in that it does not specifically acknowledge or recognize that metaphor can be brought to promote an economic and political agenda. Nor does it recognize that when human activity allows itself to be shaped by visions of metaphoric dimension, our resulting conduct might draw conflicts between layers of belief, e.g., between laws drawn to articulate current visions and older conflicting principles.

Metaphor draws its power from an ancient lineage. Especially when employed by those who need to persuade, metaphor owes much of its effectiveness to the persistence and continuous potency of ancient hopes and fears. The historical roots of metaphor must certainly be coincident with the invention of language, itself, and thus are closely allied to the act of naming. Naming a thing is to attribute to that thing qualities and images envisioned by the author of that name, forming a confluence between the "I" and the "it.." In that sense, making metaphor (admittedly a more complex act than naming – but not necessarily more magical) connects two things that are fundamentally different for the purpose of creating an identity between them – of tagging them with human meaning.

The Shorter Oxford English Dictionary defines metaphor as "A figure of speech in which a name or descriptive word or phrase is transferred to an object or action different from, but analogous to, that to which it is literally applicable..." This definition ignores the role metaphor plays in conditioning our perception of reality; indeed, by emphasizing the "analogous" connection between a metaphor and its object, this definition seems to push metaphor closer to simile, in which the process of analogy is always apparent and explicitly indicated. The SOED's second definition of metaphor: "A thing considered as representative of some other (usu. abstract) thing; a symbol." comes closer, but by introducing the notion of "representation," it fails to approach the root nature of metaphor. I prefer the interpretation of metaphor's role that E. H. Gombrich puts forward in his essay "Meditations upon a Hobby Horse," by which, under its force, the distinction between metaphor and the object of metaphor, if only for a brief moment, is entirely dissolved. (E.H. Gombrich. Meditations on a Hobby Horse and Other Essays on the Theory of Art, London, Phaidon Press, 1963, p. 1 ff.)

Today metaphor is relegated to the place figures of speech occupy in academics, and is often used lightly for ornamental or aesthetic intent; but, at its core, metaphor and primitive magic and superstition evolve from the same urges – from the dread and anxiety that accompanies the lack of control or understanding of nature and events – from a need to explain and have power over the unknown and uncontrollable. Metaphor induces a belief system for the perplexed and gives power to the powerless. The power of metaphor, as vital to the modern world as it was in most ancient of times, is clearly demonstrated by the fear of calling frightful or awesome things by their given names – or even the fear of giving them names – as if to name a dreadful thing (like cancer), will cause it to manifest or to invoke a hex. Metaphor arises in the need to bottle fears, as children posit a boogeyman in order to give fear a name. So powerful is the act of naming a thing, that (in the literature of these things) to summon dire spells and incantations often a three-time repetition is required – as verifiable proof of intention: Refer to the Hassidic incantation "I divorce you, I divorce you, I divorce you," or the repetition of "betelgeuse" (Beetlejuice) three times in Tim Burton's 1988 movie of that name, or the refusal among Orthodox Jews to pronounce the name of God. The power of such repetition has become a literary device. So awesome is he, that to call him into being you must repeat Candyman's name five times. [text]

Note 002: Lawrence Lessig (The Future of Ideas: The Fate of the Commons in a Connected World, New York, Random House, 2001, p. 21) discusses the distinction frequently made between "rivalrous" and "nonrivalrous" resources. His purpose is to distinguish their use in the situation of the commons, but the concepts are useful in other contexts: Corporeal properties and creations are by nature rivalrous in that the natural limitation of supply of a unique thing means that everybody cannot use or possess it at once. In contrast, nonrivalrous resources, like literature or poetry, allow any number of people use use or own them simultaneously. By their nature most intellectual properties are nonrivalrous, but there are exceptions. Works of art that exist as singletons, in particular, fall halfway between these two categories. The work, itself, is unique, and can be owned by only one person or entity and, at best, can be seen only by several people at a time, but a reproduction of it is not (necessarily) unique and can be owned or viewed by everybody. In an effort to increase value, creators of art sometimes manufacture "limited editions" of their work. This can take the form of a numbered lithograph or a limited publication, such as a limited release of a Disney classic film on DVD or tape. In the first case the work remains rivalrous, but becomes more commonly available. In the second case a work that might not have been rivalrous is made to become so (or so it seems). The special case of works of art is the subject of a portion of this paper. See below, Section VIII. [text]

Note 003: The classic study of the efforts to forge a balanced copyright regime in 18th-century France and the United States is by Jane C. Ginsburg, "A Tale of Two Copyrights: Literary Property in Revolutionary France and America," Tulane Law Review, vol. 64, 991 (May 1990). Professor Ginsburg discusses the formation of the "copyright bargain," – how authors came to be guaranteed enough protection and property rights in their creations to promote the creation of new works, while the public good was served by limiting the duration of protection, making the public the eventual heir to these works. She notes (p. 6), for instance, that while the Constitution seems to devalue the rights of creators in the face of its utilitarian agenda, sufficient evidence exists in the "Committee of Detail" and in Madison's contribution to the Federalist Papers to suggest that it was not the intent of the Constitution to overlook the rights of individual creators. – On the history of copyright having limited duration in the United States and England, see Tyler Ochoa and Mark Rose. "The Anti-Monopoly Origins of the Patent and Copyright Clause," Journal of the Copyright Society of the USA, 2002, pp. 682 - 84. (An expanded version of the amicus brief submitted in regards to Eldred v. Ashcroft.). [text]

Note 004: On the history of the meaning of the term "property" as an instrument in the definition of intellectual property, see especially Pascal Kamina. "Author's Right as Property: Old and New Theories," Journal of the Copyright Society of the USA, Vol. 48, no. 3 (Spring 2001), p. 383 ff. For this quote (in the author's translation) from the Ricardi case, see, Kamina, p. 403. [text]

Note 005: In an August 13, 1813 letter to Isaac McPherson Jefferson writes: “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement, or exclusive appropriation. Inventions then cannot, in-nature, be a subject of property. “ (See: The Founders' Constitution, University of Chicago and The Liberty Fund. See http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html) – The Jeffersonian view, of course, was balanced by the temporary monopoly given to authors in the Constitution. On this history of the granting of a temporary monopoly see below in n009: Ochoa and Rose (especially p. 686 ff.).  [text]

Note: 006:  Lessig (op. cit., p. 22) cites Garrett Hardin, "The Tragedy of the Commons," Science 162 (1968), p. 1243. See Garrett Hardin. "The Tragedy of the Commons," Science, 162(1968):1243-1248. On-line at: http://dieoff.org/page95.htm. [text]

Note 007: Michael Shapiro (Attorney-Advisor, Office of International and Legislative Affairs, U.S. Patent and Trademark Office), "Imagining the Public Domain," and Jeffrey Cohen (Lecturer, Bryn Mawr College), "Implementing Public Domain Collections Online." An agenda of the St. Louis NINCH Town Meeting is available. See: http://www.ninch.org/copyright/2002/stlouis.html. For summary abstracts of the reports, see: http://www.ninch.org/copyright/2002/stlouisreport.html. [text]

Note 008: The French language uses an analogous construction: "tomber dans le domaine public." The terminology was used in the 1886 Berne Convention for the Protection of Literary and Artistic Works. Article 14 states: "Under the reserves and conditions to be determined by common agreement, the present Convention shall apply to all works which at the moment of its coming into force have not yet fallen into the public domain in the country of origin." Quoted from Tyler T. Ochoa, "Origins and Meanings of the Public Domain," 28 U. Dayton L. Rev. (forthcoming 2002. Draft manuscript, on file with author. tochoa@law.whittier.edu.) p. 7.Professor Ochoa notes that the term appeared in U.S. law earlier, in 1875, and suspects that this usage was adapted from a French source. This article sketches the history of the use of the term "public domain" in legislation and case law.

Other usages: "Owners of works published between 1978 and March 1, 1989 that did not contain a valid copyright notice were given a five year grace period in which to correct the problem of publication without notice before their work was unceremoniously tossed into the public domain." Click for Source – The use of "to fall into the public domain" is reflexive: Lawrence Lessig, speaking of the effects of the Sonny Bono Copyright Term Extension Act (which he is opposing in the Supreme Court) is quoted as follows: "Because of that law, 'an extraordinary range of creative invention will be blocked from falling into the public domain at least until 2019–or longer if Congress extends the copyright term again,' Lessig said." Quoted from Stanford Law School Eldred v. Ashcroft Resource Page: http://lawschool.stanford.edu/~erika/eldred.shtml, which quotes an article by David G. Savage "'Limitless' Copyright Case Faces High Court Review," Los Angeles Times, February 20, 2002, p.A1. – Web page from North Carolina State University Libraries: "Failure to renew injected the work into the public domain. http://www.lib.ncsu.edu/scc/copyright/pd.html – "Works created on or after that date no longer require copyright notices for protection, and elimination of a notice (either intentional or accidental) will not result in the work being cast into the public domain." http://www.pdnonline.com/20years/timeline.html. – "The defendant responded that the August 4, 1789, decree generally abolishing ancien regime privileges had terminated the work's protection and cast it into the public domain..." Ginsburg., op. cit. p. 15. (In all cases bold italics have been added.) [text]

Note 009: Article I, Section 8: "The Congress shall have power ... [t]o 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." – On the genesis of the utilitarian basis for copyright in English law after the Statute of Anne and the resulting conflicts with London booksellers over the limitation of monopoly protection of copyright, see Ochoa and Rose. op. cit. p. 675. [text]

[go to Notes header]

Note 010: Mary Bono was quoting Jack Valenti. From the Congressional Record: "Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's [of the MPAA] proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress." As quoted from web page "Pirate's Little Helper." http://www.swcp.com/rtoads/toad5/pirate/bono.html (Congressional Record of the House of Representatives, October 7, 1998)

Curiously, in cinema westerns of the 1940s and 1950s, where farmers frequently were pitted against ranchers, the plots (and one assumes the studios who commissioned the plots) always took the side of the farmers who needed to fence in the open range. The farmers got all the best women, and stood for family values and the benefits of personal industry. In contrast, the ranchers represented the center of corrupting wealth and power. Their henchmen were usually a mangy dangerous lot without scruples who believed the farmers a threat to the open range – stealing what rightfully belonged to the ranchers. These movies can be read as early parables of the conflict between the pro-copyright forces and the pro-public domain forces. The farmers represent America's version of the Enclosure Movement. At that time the studios probably saw themselves, like the farmers, as fighting for survival – trying to hold onto their properties. See this author's paper "Making the Public Domain Public," VRA/NINCH Town Meeting, San Francisco, April 2000 http://www.studiolo.org/IP/VRA-TM-SF-PublicDomain.htm. – "Troublesome Tribute:" The Supreme Court has agreed to hear a constitutional challenge to the Copyright Term Extension Act. See further: http://eldred.cc and (relative to art historians) http://www.studiolo.org/IP/CTEA/CTEA.htm [text]

Note 011: Belief systems tend to develop paradoxical implications. Compare this comment on the spiritual hegemony of our copyright system: "... copyright’s incursions into the territory of the soul can be resisted on grounds more intimate still. We have made of copyright a virtual religion, so much so that one cannot escape the sense that it is the Establishment Clause that should occupy our attention in this setting. A decent respect for the private and uncharted recesses of the human psyche, unaugmented by any other consideration, counsels caution, for it is in this place that our creativity is rooted and nourished, and from this place that our gifts to others later spring. It is just here, then, that we sensibly resist deliberate effort by governments to establish our systems of belief." from David Lange & Jennifer Lange Anderson, "Copyright, Fair Use and Transformative Critical Appropriation" (a draft of the text ... from a work in progress, November 9 - 11, 2001), p. 143. In papers for The Conference on the Public Domain, Duke Law School, Nov, 9-11, 2001. See http://james-boyle.com/papers.pdf. [text]"

Note 012: A recent search on the World Wide Web using the Google search engine for "Horatio Alger" yielded over 16,000 hits. [text]

Note 013: For a legal analysis of the same phenomenon, see: Jessica Litman, "The Public Domain" Emory Law Journal, Fall 1990. For an online version see: http://www.law.duke.edu/pd/papers/Litman_background.pdf. Litman states that the degrees of dependence of any work of art are so complex and profoundly the result of preceding work that a vast public domain (including what we normally call "fair use") is necessary just to make it possible to create in an atmosphere relatively free of unmanageable administrative rights management obligations

In a letter dated 1676 to Robert Hooke, Isaac Newton neatly expressed the idea that creation is a dependent process: "If I have seen farther than others, it is because I was standing on the shoulders of giants." The reference no doubt is to Cedalion standing on the blind giant Orion's shoulders, guiding him to the rising sun, an image of which is well known in the 1658 version by Nicolas Poussin at the Metropolitan Museum of Art. It does not seem to be known when this work came to England, but Anthony Blunt (All the Paintings of Nicolas Poussin: A Critical Catalogue, No. 169, cites it as having been sold in London in 1745.

On the topic of a creator's sources and dependencies see especially an article by art historian Gary Schwartz in which he identifies the impenetrable thicket of resources upon which nearly every author depends. "Copyright after the death of the author," IER (Intellectuele Eigendom en Reclamerecht (Intellectual Property and Publicity Law), Kluwer, Vol. 11, No. 2 (April 1995), pp. 49-55. See, also, below, n053. – Tyler Ochoa, in a letter of October 18, 2002 to this author recalls that Edison – "a master of applied technology .. employed teams of assistants in searching for technological solutions to known problems." Under Edison's direction the assistants contributed their own separate genius, but all the credit came to be attributed to a single person. We seem to be predisposed not to acknowledge the contributions of others. We must create heroes. [text]

Note 014: In some respects the conflicts between what Paul Goldstein (Copyright's Highway: From Gutenberg to the Celestial Jukebox, Hill and Wang, New York, 1994) has dubbed the "copyright maximalists" and "copyright minimalists" is a replay of the history of copyright before and during the French Revolution. Diderot, arguing in behalf of preserving the publishing monopolies of the Paris Book Guild, wanted them to maintain their control of all publishing in France – in effect giving them the right to copy and prevent copying in perpetuity. In contrast, the Marquis de Condorcet, in his work Fragments sur la Libertι de la Presse, arguing against copyright monopolies, claimed that "ideas did not spring directly from the mind, but originated in nature and were thus open to all." See a short paper by David Walker, "Heirs of the Enlightenment: Copyright During the French Revolution and Information Revolution In Historical Perspective," [probably an undergraduate paper written at the] University of California, Los Angeles, 2000. http://skipper.gseis.ucla.edu/students/dwalker/html/projects/documents/IS-200_Heirs_of_the_Enlightenment.pdf. [6/25/06 Paper not found online: Try http://ukcdr.org/lists/ukcdr/2002-December/004102.html] On this topic, see especially a frequently quoted paper by Jane C. Ginsburg. "A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane. Law Review. 991 (1990); also published in Revue Internationale du Droit d'Auteur 125 (Jan. 1991); revised version published in Of Authors and Origins (an internationally-authored collection of essays on copyright theory) (B. Sherman and A. Strowel, eds., Oxford U. Press 1994). – Jessica Litman. "The Public Domain," Emory Law Journal, Fall, 1990. [text]

Note 015: Litman, op. cit. [all references to online version cited above, p. 1] Litman cites M. Nimmer & D. Nimmer, Nimmer on Copyright § 2.01[A], at 2-8.1 (1989) on the idea that invention is the kind of creation that the author creates out of nothing. Litman defines "the public domain" somewhat differently than the way it is usually understood – as that body of works no longer protected by copyright. She enlarges it to encompass the sense it used in this instance: all those works, ideas, facts, etc., that form the creative foundation upon which new works evolve and which, despite their copyright status, must be free to be used unencumbered by copyright limitations and restrictions. She states, "the public domain is the law's primary safeguard of the raw material that makes authorship possible" (p. 2). – James Boyle, speaking facetiously: "Who needs a public domain if you can create out of nothing?" "The Second Enclosure Movement and the Construction of the Public Domain." http://www.law.duke.edu/pd/papers/boyle.pdf October 2001, p. 17. – In a time-line of human creation, the public domain will be lengthy and the period of copyright, just a dot. On the history of the public domain as a concept, see  Ochoa, "Origins," In Part III, on statutory recognition of the public domain, Professor Ochoa will remind the reader that the public domain "existed from time immemorial," and that from the earliest times, humans learned through copying and other forms of mimesis. [text]

Note 016: On "no man's land" and the "public domain" see Chicago Sun Times review by Roger Ebert of It's a Wonderful Life: [Link renewed 6/25/2006] "The best and worst things that ever happened to It's a Wonderful Life is that it fell out of copyright protection and into the shadowy no-man's-land of the public domain." See also Sam Williams, "Opposing Copyright Extension, Commentary on the Public Domain, Should Auld Copyrights Be Forgot" Upside Today, Open Season, December 22, 1999. Online at: http://www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/publicdomain/Williams12-22-99.html – The phrase "no-man's-land" is used with variable connotations. David Lange, in his seminal article "Recognizing the Public Domain" (http://www.law.duke.edu/pd/papers/Lange_background.pdf) uses it to characterize the intersection of what belongs in the public domain with what belongs in the realm of copyright. Literally, "no-man's-land" is the land that lies between opposing military forces. But the dictionary (Encarta, 2000) also notes that the term can be used to signify "unclaimed territory: any area of land that no one has established a claim to," which, when applied to the intellectual public domain, tells us that it is ripe for exploitation. – The public domain "amounts to a dark star in the constellation of intellectual property" Lange, op. cit. p. 5 (PDF ver.)  [text]

Note 017:  Carol M. Rose ("The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems." Minnesota Law Review, November 1998) reports that "Carolyn Merchant, a feminist environmental historian, has recently revisited John Locke's famous disquisition on property, and has concluded that in Locke's view, property would reintroduce humankind to a new version of Eden." (http://cyber.law.harvard.edu/eldredvreno/rose.html) See also, Rose, note 3: "Carolyn Merchant, Paradise and Property: Locke's Narrative and the Transformation of Nature (Mar. 7, 1997) (unpublished manuscript presented to the Am. Soc'y For Envtl. Hist., Baltimore, MD, on file with author). [text]

Note 018: "A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. Who, then, will invest the funds to renovate and nourish its future life when no one owns it? How does the consumer benefit from that scenario? The answer is, there is no benefit." Quoted in Jessica Litman. Digital Copyright, Prometheus Books, Amherst, NY 2001, p. 77 (and cited as from Copyright Term Extension Act: Hearing on H.R. 989 Before the Subcommittee On Courts and Intellectual Property of the House Committee on the Judiciary, 104th Cong. 1st sess. (June 1, 1995) (testimony of Jack Valenti, Motion Picture Association of America). – Pathetic fallacy: Ruskin, in Modern Painters (Vol. III, Part IV), notes that the metaphor he called the "pathetic fallacy" "produce[s] in us a falseness in all our impressions of external things" and is a consequence of emotion getting the better of reason. (Quoted from Karl Beckson and Arthur Ganz, A Reader's Guide to Literary Terms, New York, Farrar, Straus and Cudahy, 1960, p. 160) [text]

Note 019: "The public domain is not a big black hole into which works 'fall,' never to be seen or heard again. Rather, it is the repository for all the expression that our copyright law was created to support, the expression that we are all free to use in any way we wish." Georgia Harper. "Copyright Endurance and Change," in The Journal of Electronic Publishing, University of Michigan Press: http://www.press.umich.edu/jep/07-01/harper.html. Reprinted from EDUCAUSE Review, Volume 35, Number 6, 2000. In private correspondence with the current author (4/22/02), Georgia Harper remembers that the context of her highlighting the phrases "black hole" and "to fall into the public domain" was coincident with a speech she heard delivered by then President Clinton, in which, repeating a theme often raised by Jack Valenti, he depicted the public domain as a kind of tragedy. [text]

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Note 020: Quoted from Lange (op. cit. 1981, online ver. p. 6) who quotes Carmen, "The Function of the Judge and Jury in the 'Literary Property' Lawsuit," 42 Calif. L. Rev. 52, 57-59 (1954), cited with approval in Desny v. Wilder, 46 Cal.2d 715, 727 n.5, 299 P.2d 257, 262 n.5 (1956). [text]

Note 021: Joseph L. Sax. Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures. Ann Arbor, University of Michigan Press 1999, p. 2. – In 1814 the French jurist Jean-Marie Pardessus, in his Cours de droit commercial, identified the unique nature of cultural property and articulated the notion that those who possess such works are mere custodians without the full rights of ownership that normally apply to tangible things. Quoting from Pascal Kamina, op. cit. in his translation: "The sale of a manuscript without any reserve does not have the same effects as the one of ordinary properties. It does not give to the purchaser the right to dispose of the manuscript in the most absolute manner; for example, to change, to recast, to increase by intercalculations or to reduce by deletions. Also, he cannot destroy it or decide not to publish it in print; he is, actually, only a tenant for life, who must enjoy while keeping the substance of the thing." Readers will recognize in the above, an early articulation of what has come to be called the author's right of integrity, but it also signals that the public has a perpetual interest in privately owned works of significance. This interest bestows an obligation of stewardship upon owners. [text]

Note 022: The sense of loss that accompanies efforts of private individuals to fashion monopoly interests in materials commonly felt to belong to the public, or at least, to public institutions, is not limited to the control of unique originals, but can apply, as well, to the control of surrogate images. Recall the sense of impending loss when it was believed that the predecessor of Bill Gates' Corbis Corporation was attempting to obtain perpetual rights to distribute digital images of museum holdings. In the general museum community, this strategy was considered tantamount to executing a fraud. The bias against private ownership of public works owes to the belief that there is a component of such works that is the property of civilization at large. Law in the United States is at fault for not recognizing the claim of cultural ownership.– Art historian Gary Schwartz, in his twice-monthly e-mail column, Form Follows Dysfunction ("The Epsilon Plan," No. 166, September 14, 2002, simultaneously published in Het Financieele Dagblad, in Dutch) argues that the historical significance of a work and its provenance are factors that should affect what an owner can do with it. In this case, he believes that a painting by Emanuel de Witte, which has remained in situ at the Oude Kerk in Amsterdam since it was commissioned should be kept in place instead of being moved from the church and should not be removed from the list of Dutch works that may not be exported, the purpose of which is, presumably, to free it for eventual sale. (For a copy of this article write to the author at Gary.D.Schwartz@let.uu.nl.) [text]

Note 023: Litman (pp. 2-3) relates three current interpretations of the public domain: 1) It is what the public gets in return for having granted copyright to authors and creators, 2) It is the repository of all those works "undeserving" of copyright – meaning that they have no economic value, and 3) The body of works that cannot be protected by the copyright owners. This is the market failure definition, sometimes offered as the reason why "fair use" exists. – Each of these interpretations are projected from the copyright owner's perspective, which, ironically, ignores the sustaining value of the public domain to the copyright owner, himself. I suspect it is easier to develop theories such as these if the copyright owner is not the copyright creator and has no direct experience with the creative process – assuming, of course, that content creators may tend to be more aware of their sources of inspiration than those responsible for marketing their works. [text]

Note 024: The introduction of the term "terrorist" into the discussion certainly was suggested by modern real-life conflicts, but its genesis as a copyright weapon is interesting since it has been used to characterize both copyright owners and intellectual property users. It has been used by free speech advocates to describe the methods by which the Church of Scientology used copyright law to prevent the public airing of criticism and to prevent unauthorized distribution of its literature. On 14 March 2002, Kevin W. Grierson reported to the Internet discussion list cni-copyright: "I believe that the term was first bandied about in the ongoing litigation between the Church of Scientology and several persons who sought to disseminate their confidential publications via the Internet. The Church attempted to use copyright law to prevent the dissemination of the materials, thus giving rise to the accusation that they were 'Copyright Terrorists'." – In a story reported in the New York Times (January 17, 2002), Jack Valenti, president of the Motion Picture Association of America described the widespread "infringement" and piracies that they must quell as a "terrorist war." (Reported by Terry Carroll to cni-copyright, March 13, 2002.) – Representing the Association of American Publishers, Pat Schroeder, as reported in an article appearing in the Washington Post (February 7, 2001, p. C01) explains that publishers have a "serious issue with librarians" because in lending books they permit multiple readers to access a minimum number of purchased copies. The rhetoric was escalated another notch or two when Judith Platt, speaking for the AAP, demonized librarians for wanting to allow people to read books for free, comparing them to terrorist organizations opposed to the basic principles of the American System. (Reported by Lisa Bowman to CNet News: "Library 'radicals' targeted in latest copyright battles," July 12, 2001). Empowered by our digital age, rights holders have begun to remove the user from the Constitutional copyright bargain. By trying to substitute a licensed agenda for our traditional acquisition-by-purchase system, they hope to control how works are used and who uses them. Contracts for e-books, I understand, even prohibit licensors from reading the book aloud – even when the book, itself, is in the public domain. In an e-mail this author received in 1998, a writer, characterizing himself as an "independent scholar" used the term "anti-copyright terrorist" to stigmatize anybody (usually academics) who wanted to erode the rights of the author for the purpose of enlarging the public domain – as he put it. [text]

Note 025:  Siva Vaidhyanathan, speaking at the New York Public Library, NINCH Copyright Town Meeting, "Intellectual Property and Multimedia in the Digital Age," September 24, 2001. See: http://www.ninch.org/copyright/2001/nyplreport.html. – Jessica Litman (Digital Copyright, Chapter 5: "Choosing Metaphors," op. cit. p. 77) identifies the metaphoric arguments used by the copyright industry to manipulate the popular understanding of what copyright signifies. The law, she maintains, has only a minor tug on the direction of copyright legislation. It is the "principles" (newly formulated to meet the needs of copyright owners) that motivate the lobbyists and ultimately have proven most persuasive. At the start of the 20th century, she says (p. 78) copyright was understood as a bargain in which copyright was granted as long as works were to become part of the public domain. After that, the "compensation" model took over. Copyright existed to encourage authors to create and earn monetary rewards. The publication paradigm insured that created works reached the public. It was understood, however, "that the nature of copyright required that it offer only circumscribed, porous protection to works of authorship," but in return (p. 79) copyright owners received longer terms and no test for originality. In the 1970s everything changed again. Without retelling all of Ms. Litman's narrative, the reader should note that the history of metaphor she relates is the history of the changing meaning of copyright – at least the way it changed in the eyes of the successful lobbyist. The subject of this essay differs; its function is to show how metaphor – especially when using charged words and phrases – on one hand has been used to vilify those who promote the benefits of maintaining a strong public domain, and on the other to undermine any residual popular conception of its usefulness. [text]

Note 026: Compare Litman (op. cit., 2001, p.80) on the economic model of copyright that assumes that greater protection produces more works: "If we forget that the [economic] model is just a useful tool, and persuade ourselves that it straightforwardly describes the real world, then we're trapped in a construct in which there's no good reason why copyrights shouldn't cover everything and last forever." But note that a copyright regime that awards perpetual copyright, with years will pick up additional administrative overhead – especially when copyright owners can't easily be found or when multiple heirs have to share rights. These problems might be solved for the sake of valuable copyrights, but will paralyze the administration of rights to unknown rarely used works for which no copyright information is available. [text]

Note 027:  Rothstein, op. cit. See header quote. [text]

Note 028: On the Pogo Earth Day cartoon of 1971, see: http://www.nauticom.net/www/chuckm/whmte.htm. [text]

Note 029: On the Academic Image Cooperative, see: http://www.pipeline.com/~rabaron/index07.htm [text]

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Note 030: Howard Besser's Copyright Common's page: http://www.gseis.ucla.edu/~howard/Copyright/commons.html [text]

Note 031: Duke University Law School "Conference on the Public Domain:" http://www.law.duke.edu/pd/about.html [text]

Note 032: Literature for children frequently investigate the theme of what is allowed and what is forbidden and contrasts the two. It is not infrequent in this literature to find that the subtext conveys the impression that the bounded world of adults, filled with rules and prohibitions, is inferior to the wide-open freedom-embracing creative world of children. There are no children's stories (yet) pitting the confined world of copyright obligations and restrictions against the creative freedom of the public domain, but stories in which children break the rules of society are not uncommon. Here are two about children in museums: In E. L. Konigsberg 1967 classic, From the Mixed-Up Files of Mrs. Basil E. Frankweiler, to teach their parents a lesson, two children, brother and sister, run away to the Metropolitan Museum of Art, successfully hiding at night and blending in with museum visitors during the day. In James Mayhew's Katie and the Mona Lisa, Katie climbs into the frame of Leonardo's masterpiece, discovers that Mona is quite sad, takes her on an adventure, and leaves her smiling. In each of these stories children treat great works of art, owned by museums and in an adult world subject to strict rules governing the decorum of approach, as if they are in their private domain – which is one of the ways the public domain manifests itself to individuals. See further: Robert A. Baron, "Images and Icons: The Making and Unmaking of Pictures for Mass Consumption," Visual Resources, Vol. 17, pp. 329 ff. [text]

Note 033: As quoted in James Boyle. "The Second Enclosure Movement and the Construction of the Public Domain." http://www.law.duke.edu/pd/papers/boyle.pdf October 2001, p. 5. Originally from International News Service v. Associated Press, 248 U.S. 215 (1918) (Brandeis, J. dissenting). – Compare Thomas Jefferson, op. cit. n005. – Also note the following acknowledgement of the inevitably of a public domain by Victor Hugo and dating from the 1870s when he was president of the Association Littιraire Internationale: "as soon as [a] work is published, the author is not any more the master. It is then that other persons seize it: call it what you will: human spirit, public domain, society. It is this person who says: I am here; I take this work, I do with it what I believe I have to do, I am the human spirit; I possess it, it is with me from now on..." (Communicated to cni-copyright 4/10/2002 by Karl-Erik Tallmo whose (admittedly rough) translation derives from the text as published in Olagnier, "Le droit d'auteur" vol. 1, p. 13). Jane Ginsburg (op. cit., p. 9) records a similar sentiment. Reporter Le Chapelier, for the French law of 1791, in a passage usually quoted to demonstrate the rights given to authors, continues by noting how important is the concept of the public domain to which works are dedicated once the rights of authors expire. Ginsburg informs us that "Once disseminated ... the manuscript is 'given over to the public ... by the nature of things, everything is finished for the author and the publisher when the public has in this way [through publication] acquired the work.'" [text]

Note 034: Ovid. Metamorphoses, [Latin] with an English translation by Frank Justus Miller, vol. 1 Cambridge, MA, Harvard University Press, 1966, Book 1, p. 11. Here is Ovid's description of the Golden Age (op. cit. p. 9). Note the links between Ovid's Golden Age, American utopian commune movement and the modern resurrection of the Commons: "Golden was that first age, which, with no one to compel, without a law, of its own will, kept faith and did the right. There was no fear of punishment, no threatening words were to be read on brazen tablets; no suppliant throng gazed fearfully upon its judge's face; but without judges lived secure. Not yet had the pine-tree, felled on its native mountains, descended thence into the watery plain to visit other lands; men knew no shores except their own. Not yet were cities begirt with steep moats; there were no trumpets of straight, no horns of curving brass, no swords or helmets. There was no need at all of armed men, for nations, secure from war's alarms, passed the years in gentle ease. The earth herself, without compulsion, untouched by hoe or plowshare, of herself gave all things needful. And men, content with food which came with no one's seeking, gathered the arbute fruit, strawberries from the mountain-sides, cornel-cherries, berries hanging thick upon the prickly bramble, and acorns fallen from the spreading tree of Jove. Then spring was everlasting, and [p. 10] gentle zephyrs with warm breath played with the flowers that sprang unplanted. Anon the earth, untilled, brought forth her stores of grain, and the fields, though unfallowed, grew white with heavy bearded wheat. Streams of milk and streams of sweet nectar flowed, and yellow honey was distilled from the verdant oak." [text]

Note 035: James Boyle, "Second Enclosure Movement," p. 19: "Like the environment, the public domain must be 'invented' before it is saved. Like the environment, like 'nature,' the public domain turns out to be a concept that is considerably more slippery than many of us realize. And like the environment, it turns out to be useful, perhaps even necessary, nevertheless." – Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, New York, New York University Press, 2001. [text]

Note 036: Boyle, op. cit. p. 6. – Ochoa, op. cit. "Origins." draft, p. 14 ff. (See n008.) On the history of the use of the term "public domain" in American law, see draft, p. 20 ff. [text 1] [text 2]

Note 037: The outlines of the recent dissatisfaction with the public domain sketched in this article can be understood as a reflection of economic politics. It corresponds with what Benjamin R. Barber in "A Failure of Democracy, Not Capitalism" (New York Times, July 29, 2002) describes as an assault by market fundamentalists on democratic principles, which manifests as a corresponding general disfavor with the virtues of public solutions. He says: "Capitalism is not too strong; democracy is too weak. We have not grown too hubristic as producers and consumers; we have grown too timid as citizens, acquiescing to deregulation and privatization (airlines, accounting firms, banks, media conglomerates, you name it) and a growing tyranny of money over politics. [Ά] The corrosive effects of this trend are visible not only on Wall Street. The Bush administration, which favors energy production over energy conservation, has engineered a reversal of a generation of progress on environmentalism that threatens to leave the Superfund program underfunded, air-quality standards compromised and global warming unchecked. These policies can be traced directly to that proud disdain for the public realm that is common to all market fundamentalists, Republican and Democratic alike. Such attitudes represent a penchant for a go-it-alone economics that undermines the social contract and turns corporate sins into virtues of the bottom line." The author is speaking, of course, of the recent crisis in investor markets, but every word he says applies eloquently to the growth in importance of the regime of copyright and the growing passivity of the public domain to that onslaught. [text]

Note 038: Compare, Boyle, op. cit. p. 10: "More property rights, even though they supposedly offer greater incentives, do not necessarily make for more and better production and innovation. Sometimes just the opposite is true. It may be that intellectual property rights slow down innovation, by putting multiple road-blocks, multiple necessary licenses, in the way of subsequent innovation." – And see (as quoted and cited in Boyle, op. cit. p. 21), the following by Thomas Babbington Macaulay, Speech delivered in the House of Commons on the 5th February, 1841 arguing against a copyright term extension act: "... I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad." ftp://metalab.unc.edu/pub/docs/books/gutenberg/etext01/1lllm10.txt – In regards to a 1735 copyright bill being argued in the House of Commons, Ochoa and Rose (op. cit., "Anti-Monopoly," p. 682) present points made by an anonymous author writing in a pamphlet against the continuing extension of periods of copyright protection: "...should this Bill pass, it will in Effect be establishing a perpetual Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a great Cramp to Trade, a Discouragement to Learning, no Benefit to the Authors, but a general Tax on the Publick; and all this only to increase the private Gain of the Booksellers..." – Further to this point, if one watches Disney's promotional campaigns for limited, timed reprints of videotapes and DVDs from its film archive, one might also add "artificial scarcity into the mix. [text]

Note 039: See especially, David Lange. "Recognizing the Public Domain," Law & Contemporary Problems, Autumn 1981. Online at: http://www.law.duke.edu/pd/papers/Lange_background.pdf – David Bearman. "Intellectual Property Conservancies," D-Lib Magazine (Dec. 2000) (http://www.dlib.org/dlib/december00/bearman/12bearman.html). Ochoa, op. cit. "Origins." [text]

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Note 040: Boyle, op. cit. "Second Enclosure Movement," p. 26, and Graham v. John Deere Co. of Kansas City 383 U.S. 1, 5-6 (Sup. Ct., 1966). [text]

Note 041:  Ochoa. op. cit. "Origins," draft, p.28-9. [text]

Note 042:  Tyler Ochoa, in private correspondence with this author on October 18, 2002. [text]

Note 043: For instance, the phrase "sleep tight" originally referred to the tautness of the bed-frame ropes underlying 18th-century mattresses. These ropes had to be drawn "tight" to make beds firm and comfortable. Although beds are no longer (generally) constructed in that manner, the phrase is still used, but the word "tight" no longer carries its original literal meaning. It is possible that its current meaning may have picked up an associated connotation, perhaps implying a sense of snugness, meaning small and comfortable (tight-fitting), or, perhaps sheltered and protected, as understood in the phrase "as snug as a bug in a rug." More accurately, the phrase "sleep tight" has come to mean something like "sleep peacefully or undisturbed." That is probably close enough to what the original phrase meant, but the terminology, in this case, had to alter its meaning to keep the connation of the original expression. – Sometimes the very image and meaning of a phrase will change when the original context has been lost. The phrase "to burn one's candle at both ends," typically evokes an image of wastefulness in the form of a taper whose wick is alight at both top and bottom – or held horizontally with both ends burning. It is quite possible that the original sense of the phrase was "to burn one's candle at both ends [of the day] by rising before sunup and retiring after sunset – meaning that someone was spreading his energies too broadly for his own good, by working too long. The original phrase still retains some of that meaning, but the ridiculous emblem of the candlewick burning at both extremities seems to have been potent enough to change its contemporary significance. There is thus a subtle change of meaning, shifting the phrase from implying that someone was working too long, to working too hard. The emblem of the horizontal candle, thus, now seems to be closely related to the modern workplace complaint of "burn-out." – The phrase "public domain," similarly, evokes an image of powerful portent. It is the thesis of this paper that both the words "public" and "domain" need radical reinterpretations to be reconstructed as a concept for our age. [text]

Note 044: "The Historical Development of the Ashmolean," http://www.ashmol.ox.ac.uk/ash/faqs/q003/) [text]

Note 045: On the denial of the synonymous meanings of "public domain" and "public property," see n064. – One can't but help think in this context of Dylan Thomas' famous "And death shall have no dominion," where the word is used to mean something like "influence" but plays on its antecedent meaning as a place where death dwells – death's domicile. (See, Dylan Thomas. Collected Poems, New York, New Directions (James Laughlin), 1957, p. 77.)  [text]

Note 046: The author can attest to this distinction. Working on a for-profit effort to distribute public domain photographs held in the archives of academic libraries yielded little interest from potential image repositories. A similar project, non-profit and endorsed by academic organizations was met with great excitement and willingness to contribute photographs from archives. [text]

Note 047: For instance, when reproducing for a reader a work clearly in the public domain, a library may impose specific limitations on the use of that reproduction. The following condition is a typical notice: "Reproduced from the original in the Blankety Blank Library. For reference only. Permission necessary for reproduction." [text]

Note 048:  See Maureen Burns. "Noble Goals/Harsh Reality: A Library of UC Images and Current Trends in Copyright Law," http://www.usc.edu/dept/architecture/slide/VRA/burns/italian.html. She notes that she "had little success in tracking down the precise published reference that many believed to be humor - copyrighting Tuscany. Yet, I have contacted everyone in association with the e-mail exchange on the listservs and traced the information to a BBC World Services broadcast on the morning of April 4th, 1997. It was reported that an administrative official in Tuscany stated that he wants to copyright the surrounding landscape to prevent commercial exploitation by non-Tuscan companies promoting products unrelated to the area. He argued that the Tuscan landscape was created by the Tuscan peasants down through the ages and as their common heritage it should belong to them. This political tirade seems to be aimed at the private, commercial media. To my knowledge, no such legislation has actually been drafted in Italy to date." [text]

Note 049: Author and art critic Deborah Weisgall proposes one solution. In "Lust in the Gallery, Larceny in the Heart" (New York Times, August 18, 2002), she proposes a method by which an individual may appropriate any work one wishes, public or private, in copyright or out – simply by commissioning the virtual reality of the imagination to commit mental art theft. Some critics would assert that as far as privately held works are concerned, that is about as far as use of the public domain may be permitted to extend. (http://www.nytimes.com/2002/08/18/arts/design/18WEIS.html?ex=1030846517&ei=1&en=9d6033b677808997)  [text]

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Note 050: This was an issue that came up in our attempt to create the Academic Image Cooperative. All works of art slated for this database were clearly in the public domain and were intended to feed it. . Photographers who were willing to license them to the AIC at no cost donated rights to images of these works to the project. The publisher (basically the sponsor) would not agree to distribute the images unless the photographers agreed to indemnify the sponsor in the event that some claim of copyright arose. These were terms to which picture donors could not agree since their contributions were gifts and their assets were limited. Had they been commercial vendors of their own images, i.e. had they trafficked on their copyright of the images, they would have been ready to accept the risk and agree to potential indemnification responsibilities. But, then, they wouldn't have been donating their images or rights to them. Under such circumstances – living within the umbra of the domain of copyright, with its legal protocols and contractual protections – some elements of the public domain just cannot compete; it gets caught in a classic Catch 22. See further: http://www.studiolo.org/IP/VRA-TM-SF-PublicDomain.htm#Part II [text]

Note 051: Joseph Sax. Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures, The University of Michigan Press, Ann Arbor, 2001 (first ed. 1999). [text]

Note 052: The details of the so-called "copyright bargain" written into the United States Constitution, in which creators were granted a limited monopoly on their works after which they would pass into a "public domain" is beyond the scope of this work. A short description of this Jeffersonian concept can be found in 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/2000/chicagozorich.html). The reader is also referred to Jane Ginsburg's article "A Tale of Two Copyrights" cited above. [text]

Note 053: On Jefferson's attitude toward the public domain, see n005. – I read recently that in very polluted cities, enterprising businessmen have opened "fresh air parlors." So much for "as free as the air to breathe." The US Tennis Open of 2002 in Queens, New York featured an "Oxygen Bar" from which attendees could retrieve a breath of fresh air (for payment). Gary Schwartz, speaking of restrictions imposed on scholars who need to make private copies of research materials, says that it makes one feel as if this is "an assault on a natural right, almost like a tax on breathing." ("No fair: long-term prospects for regaining unencumbered use," a paper presented at the Town Meeting on Copyright and Fair Use offered at the annual meeting of the College Art Association, Toronto, Canada, February 1998. http://www.studiolo.org/IP/TTM/SCHWARTZ.htm ) – Quoting from Sax, op. cit., p. 3: "[C]reativity is impossible without a rich public domain. ... Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before." From Vanna White v. Samsung Electronics America, Inc., 989 F.2d 1512, 1513 (9th Cir. 1993) See also, above, n013. [text]

Note 054: The most obvious way to claim additional elements of the public domain is to arrange for the period of copyright to be extended retroactively, as was done in the Sonny Bono Copyright Term Extension Act. There are other ways as well. For instance, a packager of public domain content can contract with a repository to give it exclusive rights to a public domain resource. A public domain text or image can be included in an on-line database in such a way that users cannot copy it or claim rights to its public domain content. Those who reproduce public domain works can try to claim copyright on their reproductions, as did the Bridgeman Archive and as Corbis still claims. – The rationalization that led to the expansion of the term of copyright was originally based on the 18th and 19th-century Romantic assumption that there was an intense bond between the artist and his work. While this may be true for some artists and their works, the lengthened period of copyright was applied as well to those corporations that created their own works or acquired them from artists. It is difficult to apply the Romantic premise to corporate holders, however. [text]

Note 055: Lange, op. cit. (Online ver. p. 1). "Lacking tangible substance altogether, its boundaries cannot be recognized through the medium of the human senses. In this respect the subject matter of intellectual property is unlike the subject matter of more conventional forms of property which have in common an underlying attribute of tangibility and are in consequence susceptible to some form of sensory perception." [text]

Note 056:  For instance, the popular chart by Laura Gasaway entitled "When Works Pass into the Public Domain" (http://www.unc.edu/~unclng/public-d.htm) defines the legal boundaries of copyright in the United States, but it doesn't (and can't) address some of the practical considerations related to using the public domain, such as those related to on-line publishing, access, contracts, fair use, market failure, and risk analysis. [text]

Note 057: See Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) (http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm). Comments on Bridgeman by Barry G. Szczesny, Esq., [former] AAM Government Affairs Counsel (http://www.panix.com/~squigle/rarin/corel2.html) and Tyler T. Ochoa, "Bridgeman Art Library v. Corel Corporation: Three Possible Responses," in Spectra (Journal of the Museum Computer Network), 2002. Amalyah Keshet (Director of Image Resources & Copyright Management, The Israel Museum, Jerusalem) reminds this author that the legal authority of the Bridgeman decision is limited by its applicability only to the parties concerned, and by its lack of judicial review (email, 8/18/02). Nonetheless, repositories are beginning to take its findings into account, as if they have seen the loss of protection for non-creative works as a premonition of the future. Lack of a request for review by a higher court, in this case, is a consequence of the belief in the likelihood that the original decision would have been affirmed. Its authority at best is limited only to countries for which "creativity" is the determining factor for copyright status – these being the United States and the United Kingdom. [text]

Note 058: On this topic see Kathleen Connolly Butler, "Keeping the World Safe from Naked-Chicks-in-Art Refrigerator Magnets: The Plot to Control Art Images in the Public Domain through Copyrights in Photographic and Digital Reproductions." Comm/Ent Hastings Communications and Entertainment Law Journal, University of California, Hastings College of the Law. Vol. 21. No. 1, p. 55 ff. [text]

Note 059: Community for Creative Non-Violence v. Reid, 1992 Copyr. L. Dec. 26,860 (D.D.C. 1991). Aftermath, District Court ruled: "It should be noted that when the CCNV (Committee for Creative Non-Violence) case went back to the trial court on further factual issues, the U.S. District Court decided that when one person holds ownership and possession of an artwork and another holds the reproduction rights, the owner of the work may not refuse access to the work for purposes of making a master mold from which to make reproductions. The right of access to the work is limited in nature though, and after the mold is made, the owner of the reproduction rights shall no longer be permitted access to the original work." Quoted from: http://www.artslaw.org/WFHIRE.HTM Thanks to Tyler Ochoa for bringing this case to the author's attention. See further: http://cyber.law.harvard.edu/metaschool/Fisher/integrity/Links/Cases/ccnv.html. [text]

[go to Notes header]

Note 060: Sax, op. cit. p. 3. [text]

Note 061:  17 U.S.C. §202: "Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object." [text]

Note 062: Sax, op. cit. p. 6. [text]

Note 063: Sax, op. cit. p. 9. – Interestingly, US Copyright Code (Ch 1, section 113), with respect to artists' rights under the Visual Artists Rights Act (Chapter 1, section 106A), states that a work of art affixed to an architectural work can be reclaimed by the artist if the owner of the building plans to destroy the work in conjunction with demolition or remodeling of the building. Cultural trusts or guardianships, non-profit institutions sanctioned by government, sometimes will receive into stewardship private properties of historical or aesthetic significance (mostly architectural) from owners who no longer can afford to maintain them themselves. [text]

Note 064: Amalyah Keshet (see n057) maintains that a restricted period of privilege as defined in this writer's text is not necessary, that, rejecting Bridgeman, "copyright" is the proper status for such reproductive works, but copyright, as now constituted, is much too long and consequently restricts the development of the public domain. At the same time she objects to the term "public domain" for its "metaphoric" implication that it is synonymous with public property. It is not like a public park, she says; rather, works in the public domain are just not in copyright, asserting that there is no justifiable public interest that supercedes rights vested in private ownership. [text]

Note 065: Litman, op. cit. See n013. [text]

Note 066: The best treatment of the unsuitability of our copyright regime to patterns of creation in music and art may be found in Siva Vaidhyanathan, op. cit. Copyrights and Copywrongs.. [text]

Note 067: The term "market failure," ostensibly intended to describe a phenomenon in which copyright owners do not find it worthwhile to track down and collect fees for every infringement, is frequently used to characterize fair use, under the presumption that no use is fair unless it has been paid for. In this latter sense, "market failure" serves as a metaphoric substitute for "fair use" the ultimate purpose of which is to rob the concept of validity. On market failure see Wendy J. Gordon, "Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors," Columbia Law Review, Vol. 82, No. 8 (December 1982), p. 1600 ff. Ed. Article was written before the Supreme Court heard the Betamax Case. On fair use and market failure, see also Gary Schwartz, "No Fair," op. cit. [text]

Note 068: Encarta: "not in copyright: the condition of not being protected by patent or copyright and so freely available for use" Encarta World English Dictionary, Microsoft Corporation, 2000. – Steven H. Gifis, Law Dictionary, "Information, the source of which is available to anyone ... and not subject to copyright." [text]

Note 069:  Thanks to Tyler Ochoa for explaining the countervailing initiatives to which publishers respond without regard to the benefits of copyright. On this point Ochoa cites Seephen G. Breyer's well-known article: ‘The Uneasy Case for Copyright’, 84 Harvard Law Review 281 (1970), which, unfortunately, this author did not have opportunity to consult. [text]

[go to Notes header]

Note 070: Lange, op. cit. 1981. p. 4. Because intellectual property's boundaries are always somewhat hypothetical in the sense that any single property can owe its origin to multiple claimants, and because intellectual property can be repeated without limit, Lange believes that "two fundamental principles" should be recognized. "One is that intellectual property theory must always accept something akin to a “no-man’s land” at the boundaries; doubtful cases of infringement ought always to be resolved in favor of the defendant. The other is that no exclusive interest should ever have affirmative recognition unless its conceptual opposite is also recognized. Each right ought to be marked off clearly against the public domain." [text]

Note 071: Lang, op. cit. (Online Acrobat ver. p. 1): Lang suggests "that recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain. [text]

Note 072: The Copyright Office can determine whether any individual registered work is in the public domain, but at this time it cannot produce a list of registered works in or approaching the public domain. See Copyright Office FAQ: http://www.loc.gov/copyright/faq.html Number 11. [text]

Note 073: See the legal notice that accompanies the web site of the Library of Congress (http://www.loc.gov/homepage/legal.html). While it acknowledges the right of users to make fair use of the materials found, it emphasizes that it is the user's responsibility, in general, to obtain permission to use posted items. It says: "It is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing material founds in the Library's collections. Transmission or reproduction of protected items beyond that allowed by fair use requires the written permission of the copyright owners. Researchers must make their own assessments of rights in light of their intended use." Note that there is no statement informing visitors that when works posted are in the public domain, they need not be cleared for reproduction rights. It only speaks of obligations to copyright owners. Works posted from the public domain are not identified as such. [text]

Acknowledgements: [Contents]

The author would like to thank Christine L. Sundt for suggesting that this paper be written, for reading an early draft, and for her astute observations and suggestions. Amalyah Keshet also tackled an early version; her sage criticisms always offer something crucial to ponder. Numerous authors and attorneys provided copies of papers or helped clarify points here and there. Special thanks to Tyler Ochoa, Georgia Harper, Jeffrey Cunard, Pascal Kamina and art-historian, Gary Schwartz, for providing useful articles and references. I extend my appreciation to the editors of the Bulletin of the Visual Resources Association, and especially to John Taormina for undertaking the task of publishing an article of this length, and for their diligent efforts to correct the typescript. My wife Ruth undertook the painful task of clarifying an early draft before I messed it up again. Tyler Ochoa deserves special notice. He undertook the gargantuan task of reading a late draft closely, offered many useful suggestions, both stylistic and substantive. In addition, Professor Ochoa generously shared a draft of his forthcoming article "Origins and Meanings of the Public Domain" and his article (with Mark Rose) on "The Anti-Monopoly Origins of the Patent and Copyright Clause." both of which proved crucial to the development of this paper. The author assumes full responsibility for lacunae and residual errors found in the paper as published. I wish I had both opportunity and time to refer to many of the valuable references suggested. Experts in this field no doubt will notice key resources that have not been consulted.


APPENDIX: [Contents]

Public Domain Advocacy, Education and Resources
(Supplied by the Center for the Public Domain.)

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