Copyright Week: Building a Robust Public Domain

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The week of January 13-18 is being used by a number of legal advocacy organizations in the United States as a week of action to speak out about potential changes to copyright law. The dates were chosen so that the week’s conclusion on Saturday the 18th coincides with the anniversary of the SOPA/PIPA blackout in which many organizations and companies, large and small, worked together to protest this misguided legislative proposal.

On each day this week, organizations will focus on a different aspect of copyright. Today we are focusing on the importance of building and maintaining a robust public domain. A robust public domain is important for allowing public access to information and material, and also for promoting creativity.

The term public domain means different things to different people, but it generally refers to works that are free to use and copy because they aren’t protected by copyright exclusivity. This includes works that don’t fall within the scope of copyright protection–for example, copyright doesn’t protect ideas, only expressions–and it it includes works that were once protected by copyright, but whose copyright protection has expired. There are many famous examples of works that are in the public domain. Shakespeare’s works, Beethoven’s symphonies, and many silent films are all in the public domain. The expansion of the public domain is important because it allows for free access to a greater amount of works and information which can then be used to create new works. The OTW is a strong supporter of people’s right to create new works based on old ones–and the public domain is an important piece of that.

The public domain is itself threatened as countries extend copyright duration and the scope of copyright protection. In the United States, copyright expiration is very complicated, and depends on considerations like when a work was created, where the work was first published, and when (and if) the creator died. U.S. Copyright on new works lasts for 70 years after the death of the creator. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. This long term is the result of decades of legislative lengthening of copyright: The very first U.S. copyrights lasted only 14 years with the ability to renew the copyright for another 14 years.

According to Bernt Hugenholtz and Lucie Guibault*, the public domain is under pressure from the “commodification of information” as items of information that previously had little or no economic value have acquired independent economic value in the information age, such as factual data, personal data, genetic information, and pure ideas. The commodification of information is taking place through intellectual property law, contract law, as well as broadcasting and telecommunications law. While there has been good news in regards to public domain with the recent Sherlock Holmes decision, the public domain is still threatened and should be protected.

There are numerous important works which are in the public domain and have current remakes or remixes. One example is the TV show Sleepy Hollow, which is based on Washington Irving’s 1820 short story, as was the 1999 Tim Burton film of the same name. Washington Irving’s own story may have been based on or inspired by Germanic folktales like The Wild Huntsman. Many of Disney’s famous works were also based on folktales, and these have not only been used by numerous creators, but Disney itself has remixed a number of them in their TV series Once Upon a Time. The works of Shakespeare have been utilized many times, in many ways, including the play by Tom Stoppard, which in turn has its own fanworks.

Cultures across the globe have been enriched by the use of their heritage as displayed through the medium of stories, religion and lore. New versions of characters and tales appear regularly and are able to garner new readers, watchers and creators.

The OTW also supports the creation of transformative derivative works as fair use–a topic we’ll be discussing in a future Copyright Week post. But broad Fair Use privileges are not a substitute for a robust public domain. Over time, works and characters become part of the public consciousness and should be uinambiguously free, not only for noncommercial transformative use, but also for copying and commercial use. A robust public domain permits people to have access to consume and create based on works they might not otherwise be able to afford, and allows people to create without having to wonder whether their creations are fair use.

*Guibault, Lucy; & Bernt Hugenholtz (2006). The future of the public domain: identifying the commons in information law. Kluwer Law International.

For more about this week of action, visit the Copyright Week site where links are being collected to various posts, whitepapers etc., and users and organizations are encouraged to endorse the principles. Participating organizations include Public Knowledge, Creative Commons, library associations, Ownership Rights Initiative, iFixit, Wikimedia, Your Anon News, and SPARC among others.

Event, Legal Advocacy

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