A Case for the Public Domain

Yesterday, the Supreme Court made a ruling which grants the US Government the authority to take things out of the Public Domain and return the rights to that work to a copyright holder. Here is a link to an article about the decision. Here is a link to the decision itself. 

I was terrifically upset immediately upon hearing about this decision. I went on to read the Syllabus of the decision. I plan to read the rest, but I’ve been working all day, so I have not had the chance yet. But I really wanted to get some things off my chest about this.

After reading the syllabus, I understand that this decision is not a unilateral decision against the concept of a public domain, it is intended to actually correct a past injustice. Basically, US Copyright law did not automatically match the same copyrights granted to foreign works by their country of origin. We had our own rules, and a bunch of things that other countries recognized as protected were in the public domain here. In 1994, Congress was compelled to make this right and recognize those rights, and passed a law to do so. This suddenly made a number of things that had been in the public domain and freely reproducible into protected works.

In theory, I understand and agree with this idea—these people and works were not afforded equal protections, and equality is important. The problem I have is with the precedent it sets. The idea that things that are freely available parts of the public domain can, for any reason, be pulled back into being copyrighted works is frightening to me. We have, over the last century, seen extension after extension of copyright protection, meaning that fewer and fewer works are entering the public domain…and now they have affirmed the idea that they can pull things OUT of public domain status, as well.

I want to take a moment to try to express why I believe the Public Domain matters. I think pop culture, and indeed culture in general, has some commonalities with science. They are both a realm of ideas, where one takes in the ideas of those around them and hopefully comes up with one’s own new ideas to create and release into the world of ideas. There is a famous idea of being “dwarves standing on the shoulders of giants,” meaning that the luminaries of thought in today’s world can only reach the heights they do because of the tremendous works done by those before them. When scientists discover new ideas about the workings of the universe, or create new technologies, they are able to do so because they are basing their work, at least in part, on the ideas discovered and created by those who came before in their fields.

The same is true in popular culture. Every writer, artist, (and yes, even corporate entity) was born and lived in a realm of ideas populated by the popular culture that came before them. Oliver Twist, The Raven, Hamlet, Oedipus Rex, and The Bible were all part of the miasma of popular ideas—they were part of the clay available from which those creators could sculpt their own ideas. And, to me, coming from and living within that world of ideas comes with the price that your work, too, will someday become the clay that others can form their work out of.  Unfortunately, the system seems to be continually strained so that new generations are being faced with more and more of the idea-clay that exists around them being labeled as hands-off.

You might mention patents to me, as evidence that the scientific community has the same thing. Yeah, you’re right! And I am not saying I am against copyright! I very much want artists to have ownership of their ideas and works and to be paid for those works.  But, let’s look at patents. A quick check of Wikipedia shows me that patents in the US right now last for a term of 20 years from being granted. US copyright law lasts until 70 years after the death of the author. For corporations, the copyright lasts 95 years after publication. So, we’re already talking a SIGNIFICANT amount of time longer than patents are held. In the year 1900, the copyright term was a maximum of 42 years, total. By 2000, if you produced a work at age 30 and lived to be 80, we’re talking 120 years of the work being copyrighted.

Let me say again that I am not against copyright. I’m not. I want to pay money to the people who make things I enjoy so they can make a living and continue to create art. I want the ones who strike a chord with the culture to be able to make tons of money for their idea from the millions who enjoy it, and create little IP industries. I even think it’s fine for the art to stay copyrighted after their death for a time, even if 70 years does seem like a bit much. But I am not fine with the trend towards trying to keep ideas away from the shared ideaspace they grew from, and this decision will be another useful tool in the belt of those who seek to continue things in that direction.