Fixing IP laws, part 2 - Copyright and the Public Domain

Series links:

  • Part 1 - Introduction
  • Part 2 - Copyright and the Public Domain (This page!)
  • Part 3 - Copyright and Technology
  • Part 4 - Positioning Copyright
  • Part 5 - Policing Patents
  • Part 6 - Closing Comments

What is the public domain?

The Public Domain is where works that aren't subject to intellectual property laws go.

Sometimes, a work is in the public domain because it's not eligible for protection under intellectual property laws. Sometimes, it's there because the period for which is was eligible for protection has expired. And sometimes, it's there because its creator donated it.

Not all regions in the world share the same views or have the same rights for the public domain.

Why is the public domain important?

Are you kidding me?

Creating something completely new is almost impossible. After tens of thousands of years of human expression, starting with bone carvings and wall paintings and coming all the way up to computer game level design and choreographed flashmobs, the simple fact is that we've built every new idea on old ones. (Even if very incrementally.)

That makes creating new works tricky. You're allowed to reference or even mimic the style of old works, to some degree. But you can't simply take the whole work and put it into something larger, or transfer it to a new medium (song, dance, written word, etc.), or translate it into other languages - they would be derivative works.

Only the holder of the intellectual property rights can authorise derivative works.

So over a longer term, if we want to be able to remix, remake and transform works freely, we need a strong functioning public domain to draw inspiration from.

So what's wrong with the public domain?

The public domain is under increasing attack in two ways.

Firstly, countries keep extending the length copyright lasts for. This means that fewer works go into the public domain each year than should.

The extent of this problem varies from country to country, but overall it has become a creeping menace that threatens to lock our cultural heritage up in corporations who demand a toll for accessing it. This means we are poorer both culturally and fiscally.

Worse, some unscrupulous companies have recently been found trying to claim copyright ownership of works from the public domain, and using that false claim to remove derivative works - and perhaps even sue for damages. That will probably become a very popular business model for the unscrupulous if they are successful, as such lawsuits can be too expensive for smaller operations to defend against.

How can we protect the public domain?

  • Stop extending copyright terms
  • Require the Public Domain to be credited when works from it are used, just as other copyright holders are
  • Ensure stiff penalties for false representation of ownership of works in the public domain
  • Use the Creative Commons as a new Public Domain

Those are in preferred order, by the way.

Stopping the continual extension of copyright terms is essential.
Requiring credit for the Public Domain helps educate creators about it.
Ensuring stiff penalties for misrepresentation is a toughie - it requires governments to prosecute on the public domain's behalf, which may not happen if the government has been bought by the infringer.
Using the Creative Commons as a new Public Domain is possible, if counterintuitive. The Creative Commons has licenses which allow free use, even for commercial purposes, so if you simply allow everything then people are only required to credit you - it's legal ju-jitsu, using the law against itself!

An interesting thought

In the last century, we have made leaps and bounds in technology, and patents have retained a very short lifespan - 20 years or so. So if someone invents a new way of doing something, they have 20 years in which to use it.
As we're often looking at something which requires manufacturing, the first two to five years are basically tooling up and preparing. Then, if the product is a success, you have the rest of the twenty years to make a profit.
And that's optimistic, as many patented ideas aren't very economical to move into mass production at first, so often you just get the last decade or few years.

Ever notice how a new product appears, and after a few years the market is full of competing products in that class? Well, that's often due to patent licensing or patents expiring. Suddenly, everyone can compete with their own implementations of that idea, and generally the consumer benefits from that.

Contrast this with copyright that lasts for 70+ years in the realm of film, music and film - where there will only ever be one supplier of the product. Is that market as vibrant? Would it be better or worse with shorter terms?

Summing up

Most people don't even know the public domain exists.

They certainly aren't aware it's increasingly being bought - or stolen - by corporations. Nor do they have any idea how this can stifle creativity.

Better protection and enlargement of the public domain would be better for all creators, and therefore better for society.


In the next part, I'll be covering Copyright and Technology.