Tuesday, January 1, 2019

In praise of the public domain

by George J. Dance

January 1, 2019 - In Canada, January 1 is Public Domain Day, the day when works of art lose their copyright status and pass into the public domain. "Public domain" means that the art no longer has an owner who can charge (and therefore exclude) those who want to experience it. Physical copies are still owned; but anyone in the country - teacher, humble blogger, or even small press owner - can make their own copies without having to pay royalties for the privilege.

Public Domain Day happens today in the United States, as well, but there it is more momentous. January 1, 2019 is the first Public Domain Day in the U.S. in 20 years: the very first since the rise of the internet.

The concept of a 'public domain' has a long pedigree, reaching back to the Roman legal concepts of res nullus (things that cannot be owned) and res communes (things owned in common). In modern law, though, it is treated as a mere negative: the things to which property law does not apply. The term itself was coined by French poet Alfred de Vigny, who equated the end of a work's copyright with it falling "into the sinkhole of public domain." "Sinkhole" was a good description; For most books, songs and poems, the lack of copyright meant that no one would publish them; a work that fell into the public domain could well and truly disappear.

However, the internet changed all that. Project Gutenberg began putting the literary canon online – Internet Archive began doing the same for the rest of pre-1923 writing – Wikimedia Commons did the same for paintings and music. Today, rather than being lost to us, public domain works are available and freely accessible to billions.  

Simultaneous with the rise of the net in the 1990s, copyright holders began pushing to extend their copyrights. In 1995 the United Kingdom increased its copyright term, from life plus 50 to life plus 70 years. The United States followed suit in 1998 with its own 20-year increase, from 75 to 95 years. The British law was retroactive, declaring works already in the public domain (some already republished) back in copyright (and those published works therefore illegal). However, as the U.S. Constitution forbids ex post facto punishments, Congress had to be content with freezing copyrights for 20 years, effectively banning Public Domain Day for that time.

Canada has been under considerable pressure (most recently with the Trans-Pacific Partnership) to increase its own term. Thankfully, that pressure failed; not least, because such extensions of copyright are indefensible. A libertarian can accept the idea of giving a work's creator the sole right to use and profit from his work, even for life; and adding an extra fixed term protects his dependents from his accidental death. (For example, if a writer dies at 30, Canadian law lets his heirs collect royalties as if he had lived to 80.) But there is no justification for forcing consumers to pay royalties to a creator's grandchildren.  

Yet copyright advocates continued to demand more for another decade. Some, like Sonny Bono (a main proponent of the 1998 law), even argued for perpetual copyrights that would never expire. Perpetual copyright is also forbidden by the U.S. Constitution, which empowers Congress to grant patents and copyrights for "limited times" only; Bono and his ilk hoped to circumvent that by passing further 20-year extensions every 20 years, meaning that the next increase had to happen by 2018.

Fortunately, the internet changed all that, too. The tipping point came in 2012, when Congress debated the Stop Internet Piracy Act (SOPA), which would have forced ISPs to black out websites accused of copyright violation and blacklist the site owners. Online opposition to SOPA was massive and widespread, and in addition backed by big sites like google and Wikipedia. For once the big money pushing to expand copyright was balanced by big money pushing back. "The defeat of SOPA was so complete," says website Ars Technica, "that it has essentially ended efforts by copyright interests to expand copyright protection via legislation."

Which is why the U.S. enjoyed a Public Domain Day this year. American copyright law today is far from perfect, and in many respects not even very good. But at least this day can remind Americans that, thankfully, their government no longer has carte blanche to make it worse.

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