public domain

Wow! The save-the-Internet protests by Wikipedia, Google, Reddit, Boing Boing and hundreds of other websites marks a watershed moment in the evolution of networked political expression. Millions of Internet users learned that Congress actually can cripple the open Internet in the manner of authoritarian regimes, albeit in the name of copyright law.

Such mass politicization is powerful stuff. Within 24 hours, Senate Majority Leader Harry Reid postponed a scheduled vote on the “anti-piracy” Web censorship legislation known as SOPA and PIPA (Stop Online Piracy Act and Protect IP Act). The abrupt turnabout was widely regarded as a face-saving move for the benefit of Judiciary Committee Chairman Patrick Leahy, a key sponsor of the bill.

Although protests had been building for weeks, the one-day shutdown of popular websites suddenly made visible a huge, alternative universe of citizens who are usually ignored in Washington, D.C. Suddenly the Old Guard could not broker their self-serving, insider deals in the shadows. Suddenly the Web demonstrated its power as a new sort of theater for organizing and representing the public to confront conventional governance.

Unbeknownst to millions of people recovering from their celebrations the night before, New Year's Day is a mini-celebration nested within a more famous holiday. Who among us realized that it was.... “Public Domain Day.” This is the date on which copyrights are supposed to expire on millions of works from a previous generation. It's the date on which the proprietary controls lapse and creative works become born again as public domain artifacts that can be freely used by anyone, for any purpose.

Alas, nothing entered the public domain this year. In fact, nothing will enter the public domain until January 1, 2019, thanks to the twenty-year extension of copyright law that Congress enacted in 1998 at the behest of Disney Co. and other media giants. This may explain why Public Domain Day remains so obscure! Nonetheless, the redoubtable host of Public Domain Day – the Center for the Study of the Public Domain at Duke Law School – annually commemorates this date to educate the public about the theft of works that rightly belong to them.

For this year's “celebration,” we learn how the public domain has been impoverished through excessive copyright terms. Last week the Center provided a wonderful survey of the cultural heritage that remains locked up. “What Could Have Entered the Public Domain on January 1, 2012?” it asks. The answers include the films The Body Snatchers, Rebel Without a Cause, Lady and the Tramp.  Then there are all the books from that 1950s that you could copy and share for free: Vladimir Nabokov's Lollita; Rudolf Flesch’s Why Johnny Can't Read; J.R.R. Tolkien’s The Return of the King, the last book of his Lord of Rings trilogy; and Edward Steichen’s famous book of photographs, The Family of Man; among many others.

Two recent developments suggest that the reactionary regime of maximalist copyright can still command a lot of raw political power to beat back commoners, flout legal principles and craft the law to its liking. Yet at the same time open networks and default norms of sharing are getting some serious traction these days, as two other developments attest. Could a post-reactionary world of free culture be at hand?

First, the bad news. A few weeks ago the EU extended the term of copyright protection for music recordings by another twenty years – an ignoble replay of what the U.S. Congress did in 1998 for U.S. copyright law. You may recall that the Disney Co. was determined to stop Mickey Mouse from entering the public domain, and the motion picture, recording and publishing industries were just as eager to reap a public giveaway worth billions of dollars.

If the copyright extension had not been adopted, lots of British music recordings from the 1960s from the Beatles to the early Stones and many others were expected to enter the public domain in 2012. Now there's a chilling thought: music that's still popular becoming free!  Alternatively, the artists themselves could begin to distribute the music themselves, rather than having to let the record labels have exclusive rights for another 20 years.

Those antic law professors who gave us Bound by Law – a glorious superhero-comic treatment of the fair use doctrine in filmmaking -- are at it again!  Forget DC Comics.  I want my IP Comics!  Keith Aoki, James Boyle and Jennifer Jenkins are apparently out to build a franchise by translating the arcane monstrosities of copyright law into clever, hilarious and downright educational comic books. 

Their latest offering, due out in the spring or summer of 2011, is Theft!  A History of Music -- Musical Borrowing from Plato to Hip-Hop. Aoki, a professor of law at the UC-Davis School of Law, is the graphic artist for the comic book.  Boyle and Jenkins  -- both professors at Duke Law School – researched, wrote and designed it.  Boyle is the former Chairman of Creative Commons and co-founder of its spinoff project, Science Commons.  Jenkins heads the Center for the Study of the Public Domain.

Mark Twain's Final Copyright Crusade

Mark Twain’s autobiography is the surprise hit of the publishing world this fall:  “totally the Dad book of the year” exults one bookseller.  The University of California Press, which planned a print run of 7,500, has now printed 275,000 copies, each of which sells for $35 a pop. 

But inquiring minds want to know:  If Twain finished writing his autobiography more than 100 years ago, why is the work still copyrighted?  Didn’t it enter the public domain years ago?  The National Law Journal provides some illuminating answers in a recent article.  Reporter Shari Qualters writes that the last major revision of U.S. copyright law, in 1976, stipulated that copyrights for works created but not published before January 1, 1978, expired on

Liberate the Music!

Ludwig von Beethoven died 183 years ago. So why is his music still locked behind copyrights and not available for free to everyone? Because even if the music itself is in the public domain, the recordings of his music, or perhaps the sheet music (with special arrangements or notation) can be copyrighted by the orchestras that perform the music or the composers who notate it.

And so if you buy a CD of Beethoven's Ninth Symphony, you need to pay your $15 or so to the record label, distributor and retailer, the orchestra and all the lawyers and marketers and other irregulars with a finger in the pie. And then, in the end, you can only listen to the music. You can't legally download it, share it with friends over the Internet, do a remix of it, play it in a restaurant as background music, or use it as a soundtrack to a film.

The Public Domain Manifesto

The public domain — long a stepchild in the fierce politics of copyright law — is finally starting to come into its own. A diverse array of individuals and organizations associated with COMMUNIA, the European “thematic network” on the digital public domain, have issued a major manifesto explaining the importance of the public domain to democratic culture.

The manifesto has already garnered endorsements from thousands of people and dozens of organizations. It has also been translated into seventeen different languages, including French, Czech, Chinese Mandarin, Portuguese, Italian, Hebrew, Serbo-Croation and Turkish. This powerful show of support is helping to mobilize the many constituencies that depend upon the public domain. It also puts the corporate armies of copyright maximalists on notice that their attempts to enclose the public domain will be actively resisted.

The world’s museums are stewards of millions of images that constitute our cultural patrimony. But are museums willing to share the images that are legally in the public domain? Canadian legal scholar Michael Geist, writing in the Ottawa Citizen, notes that many museums are exploiting their control over public-domain images to limit public access to them and make money. The National Gallery of Canada, for example, charges a “permission fee,” over and above any administrative or reproduction fees, to requesters of copies of public-domain artworks. Geist argues that these fees undercut museums’ arguments for greater taxpayer support.

Permission fees often run into the hundreds of dollars, and include restrictions on how the image may be used. But not all museums are going this route. The Victoria and Albert Museum in London has dropped charges for the reproduction of images in scholarly books and magazines. Now that the Internet is making widespread public use of “scarce” images more valuable than their private market sale, it’s time for museums to reconsider how they best serve the public interest.

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