The Public Domain

It is not uncommon these days to be curious about copyright laws and how they became the creature they are today. Not a month goes by without the mention of another lawsuit about someone breaking copyright law, either by copious downloading of material on the internet or by direct reference in something recorded and published. Copyright appears to be this limiting force that somehow costs people thousands of dollars. Honestly, that is all I really knew of copyrights – aside from the obvious “I own the rights to the work, so profits for original sales should go to me.”

Then I discovered James Boyle’s The Public Domain, which he has fittingly offered up for free download. The book is not the complete history of copyright law that I sought. Instead it was an overall easy read about the idea of copyright as well as its evolution to what it is today. It is also a commentary on what it should be.

Boyle’s background enriches the book beyond what some random internet whiner’s (read: my) commentary would be. He has a background in copyright law at Yale, and he even convinced Yale to let him distribute the book for free on the internet along with a for-sale print copy. (I borrowed a copy from the library.) Boyle is an insightful man and proves himself to be quite broadminded. He recounts stories of teaching copyright to his students and noting how bright they are. He recounts the reactions his students had and their ideas. Boyle himself is demonstrative of the model he wishes businesses and copyright would take – ever evolving.

Copyright law apparently came into existence to encourage the creation of new works. Copyright terms were originally 14 years with the option of extending it 14 more. Then it was 28 years with the option of extending it for 28 more. This makes quite a bit of sense. For some it may take that long to create something else that is actually profitable, but it also makes sure that a person cannot just rely on just one work. And in the end the work has the possibility of becoming the public’s own, to share and recreate and claim as part of the culture.

Copyright law now lasts the lifetime of the author plus 70 years after the author’s death; or, in the case of corporate authorship, the short of the following: 125 years after a work’s creation, or 95 years after a work’s publication. I was disappointed that The Public Domain did not discuss why such lengthy terms exist. Discussion of the Copyright Term Extension Act, also known as the Mickey Mouse Protection Act, was kept to a minimum. Prior to the act copyright was life plus 50 or just 75 years for a corporate work. Curiously, the act went into effect in 1998 – the 75th anniversary of Steamboat Willie. This was not the first time Disney lobbied for the extension of copyright near the date of the film’s release to the public domain. For more information, read the article on Wikipedia.

I expect the next anti-copyright extension image to feature Mickey with a vice grip on the balls of copyright itself

The book also discusses the use of copyright in terms of parody and music sampling. Parody works have always been protected, but there is a question of how close is too close. The Wind Done Gone was released in 2001 to horrendous litigation from the estate of Margaret Mitchell because the story builds off of and parallels Gone with the Wind, just from the perspective of one of the slaves. None of the proper names are used, but apparently the idea might have been an infringement. Fortunately, that was settled – and it may open up the door for more parallel parodies. (Or perhaps it opened the door for all of the spoof movies we’ve seen in the past decade.) Then there’s sampling, which apparently is acceptable for up to two notes. Silly, to be sure, but apparently important. Closely sounding like another person’s work avoids infringement if it seems parody-likes or satirical. Of course, those interpretations are up to judges, not artists.

An entire song was excised due to extensive sampling from Gilbert O'Sullivan, and this helped to dramatically change the hip-hop soundscape since

Boyle discusses the ridiculousness of copyright in a very easy to digest manner, but what really should get to any reader is the fact that he constantly says he is a proponent of copyright. The book is an overview of the course copyright took toward its contemporary form. Originally it encouraged new works, but it became a vice grip on new creative expression. Songs borrowing heavily from Ray Charles’ works might face hefty fees either upfront for the rights to use them or after a court case; never mind the fact that Charles himself borrowed heavily from hymns and old gospel songs, meaning that he does not own the actual tunes to his songs. Good thing these strong copyright laws didn’t exist back then to stop these currently regarded classics from existing.

The last part of the book is more directly about moving toward a public domain model. As a blogger who gives away content for free, it’s difficult to not be on board with such a model. Just because content is accessible and usable does not mean it can’t still turn a reasonable profit. Unfortunately, there was no discussion of how to move to such a model. It is absolutely dangerous for a big business to convert to a model inclusive of public domain use of materials. But that’s not saying that a new business with such a strategy can’t come in and pave a path toward progress.

The Public Domain is a great book about the development of copyright and ideas about where to go with it. As a book about the history of copyright law, it fails. Fortunately, the book is rich in references and cites sources for readers who might want to delve deeper into the various court cases that refined the current copyright model. To be honest, I was hoping for anecdotes about the development of copyright, but this is good enough. I highly recommend the book to anyone curious about these laws that seem to govern our everyday lives.

Did I like it? Oh, I absolutely enjoyed the book. Prior to picking up this book, I found a couple others that just seemed to spend page after page defining what copyright is and its effects. They were boring to read, making the information seem less accessible. James Boyle wants what he knows to be accessible to all. Pretty obvious considering the jargon-free language and free to share PDF. I can only hope that this experiment turned out well for Boyle and Yale.

About Gospel X

Media commentator who tries not to waste time - and often fails

Posted on March 11, 2011, in digital distribution, literature, review and tagged , , . Bookmark the permalink. 2 Comments.

  1. I will check out this book, thanks for the tip. MIT’s created a short class on copyright law. I think its about four hours, and definitely worth checking out. I turned three or four colleagues onto it, all of them loved it. Its being taught to engineering students so it’s pretty accessible:

    When it comes to patents, I’m beginning to subscribe to this model: The fee for keeping a patent registered escalates too quickly, but this does provide patent owners time to capitalize on their ideas. If the idea is so revolutionary (and generating enough capital to cover continued protection) then by all means allow that money to keep it insured against infringement. However, if this is not a ground breaking innovation, keeping it out of the hands of others is reducing the ability of others to create technology or content using it. Furthermore, by providing caps and escalating fees it becomes obvious which patents (or copyrights if it were to be used as such) could be infringed… I would hope — but have no basis for knowing — that the reduced lifetime of protected Intellectual Property (IP) would see less legal battles (specifically taxpayer money funding them) over infringed IP.

    There should be a cap on how long IP should be protected. I’m not sure what is reasonable, but 95 years is beyond ridiculous. For copyrighted material, my gut feel is 10 – 20 years would be sufficient. Patents and the like on the lower end of that, perhaps less.

    An interesting question is what happens when someone does produce content using previously copyrighted works — but it is so different and intrinsically their own (e.g Girl Talk, if you’re not familiar check this out . With tools becoming more and more available and easier to use mash-ups have been getting more traction.

    What an exciting world we get to live in.

  2. Thanks for the MIT course tip. I’ll definitely be checking it out. And I agree with you about the idea of an escalating fee for patents as well as copyrights.

    As for mash-ups, I love them and have been a proponent of them for some time. Girl Talk isn’t quite my forte, but I’d be happy to share some of my favorites sometime. I look at mash-ups kind of like Warhol’s pop art. The good mash-ups present songs in a new context, leading to new meaning – or they simply improve more superficial songs by overlaying the lyrics on more complex musical structures. The book actually does discuss mash-ups to some extent. There’s no legal traction, and there’s a good reason why the community is forced to grow online and in underground clubs. However, if the mash-ups were to get the rights cleared, they’d have the go-ahead for actual public releases. That’s not happening anytime soon.

    The bright side is that the free distribution model works well for advertising their true product – the artists’ talents. Some have been hired for their mixing abilities, sometimes to specifically mash-up one popular artist’s work. But unfortunately that’s about as far as it goes. The people doing the mash-ups cannot officially find recognition for most of their musical contributions.

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