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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.
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. * * * 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] * * * 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.) * * * 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. * * * 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:
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 Framers 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 Congresss 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 states 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,
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:
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:
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 just |