Acrewoods Library

An analysis of the public domain in English, American and French law to establish whether or not the romantic version of the public domain as the legal default, against which the marauding forces of copyright fight, is realistic.

The basic message with her analysis of the English legal tradition is that it is ambiguous. Whilst the Statute of Anne and subsequent laws made it clear that copyright was limited, and that works otherwise entered the public domain, there was a huge amount of debate and legal precedent suggesting that a perpetual private property right in creative works is as likely a default.

However there are a few major flaws with her argument that undermine her efforts to muddy the waters.

First, Ginsburg immediately limits the scope of her enquiry to publishing "because the printing press gave rise to the conditions to which copyright and its predecessor privileges responded" (p.3). But this limits her enquiry to a subset of cultural practices, and misrepresents the nature of publication by tying it to a particular legal development. Really disclosure and publication in their broadest sense came with the earliest forms of human communication!

Ginsburg later discussed the "understandable economic impetus" behind various extensions to copyright (p.12). Whilst she certainly doesn't explicitly suggest that this is the only rationale for copyright, her argument supports those who make creating and supporting markets its core rationale.

There's an interesting look at 19th arguments against copyright in performances and adaptations, the lack of sufficient genius, creativity or artistic difference were cited as reasons against extending copyright to these works (p.12). But then a defendant in a case where an author wished to prevent a performance of a play suggested that "the combined effort of poetry, scenery and acting... are not produced by the author of the work, and the combined effect is just as much a new production" (p.13), and thus fair game since at the time transformative fair use was outside the scope of copyright. Of course if sufficient genius, creativity or artistic difference is required either to except from or be tangled by copyright, then this could become extremely subjective. Do the members of boy bands deserve any ownership rights, or would weak rights be afforded to the composers & choreographers and none to the disposable performers, or perhaps they require a corporate right in the work?

A great quote from Lord Camden, although Ginsburg points out that it is often "carefully excerpted" and was basically "retrograde even in its day" because of his attitude towards money evident in the second section (pp.14-15):

"If there be anything in the world common to all mankind, science and learning are in their nature publici juris, and they ought to be as free and general as air or water. They forget their Creator, as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits. Why did we enter into society at all, but to enlighten one another’s minds, and improve our faculties, for the common welfare of the species? Those great men, those favoured mortals, those sublime spirits, who share that ray of divinity which we call genius, are intrusted by Providence with the delegated power of imparting to their fellow-creatures that instruction which heaven meant for universal benefit; they must not be niggards to the world, or hoard up for themselves the common stock.

"Glory is the reward of science, and those who deserve it, scorn all meaner views: I speak not of the scribblers for bread, who tease the press with their wretched productions; fourteen years is too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy of such men to traffic with a dirty bookseller for so much a sheet of letter press."

French legal discussions and precedent

The first law for dramatists' public performance rights was drafted by Le Chapelier in 1791. He stated that (p.17, emphasis added):

"The most sacred, the most legitimate, the most indisputable, and if I may say so, the most personal of all properties is the work which is the fruit of a writer’s thoughts."

Of course "personal" could be understood in many different ways, for example by appealing to the anarchist's distinction between personal and private property. He continues (p.17, emphasis added):

"But it is a property of a different kind from all the other properties. [Once the author has disclosed the work to the public] the writer has affiliated the public with his property, or rather has fully transmitted his property to the public. However, because it is extremely just that men who cultivate the domain of ideas be able to draw some fruits of their labours, it is necessary that, during their whole lives and some years after their deaths, no one may, without their consent, dispose of the product of their genius. But also, after the appointed period, the public’s property begins, and everyone should be able to print and publish the works that have contributed to enlighten the human spirit."

The key word being "some". Affiliation and deserving some reward come a long way shy of being a justification for the copyright laws in place today, and indeed is a weak argument for having full control of "the product of their genius". Ginsburg notes, however, that in general "authors' labours justify their temporary property rights, but the public's more fundamental claims form an ever-present background" (p.17).

In response to this, however, the 1793 Report of Lakanal claims that "productions of genius" are "the least contestable" form of property that "cannot harm republican equality, nor offend liberty". Lakanal claims that it makes no sense for the author's right to disappear at the very moment at which he exercises it. Of course if the rights are disclosure and personal property then it makes perfect sense that these rights disappear the moment the work is put into the public sphere. The background to the "least contestable" quote, interestingly, is that "propriete publique" was a republican ideal but rewarding all genius equally rather than limiting reward to works approved by the ancien regime also appealed to republicans (pp.18-19).

The case law in formalities required to gain property rights evinces no clear picture as to the boundary between the author's sphere and the public's, but the subject matter and the scope of the rights is unambiguously in favour of strong authorial rights in all kinds of writings, whilst the duration, after a debate familiar to England, was firmly curtailed in positive law (p.19).

There are many different conceptions of the public domain:

A - information artefacts wholly free from IPRs (pp.109-111)
* excludes information, ideas, principles and laws of nature (hence *artefacts*)

B - IP-free information resources (pp.111-113)
* includes artefacts and ideas, principles, etc.
* most common definition
* Justice Brandeis' famous dissent in International News Service vc. Associated Press: "The general rule of law is, that the noblest of human productions - knowlege, truths ascertained, conceptions and ideas - become , after voluntary communication to others, free as the air to common use".

C - the constitutionally protected PD (pp.1113-116)
* In the US, the reason for excluding databases contradicts the labour argument for IPRs, cf. Locke - "works lack the creativity that is the sine qua non of constitutional authorship"

D - Privatisable information resources (pp.116-120)
* includes business methods, trademarks and personae, which are initially in a kind of public domain but may be appropriated
* on publicity rights - "noncelebrities generally do not have publicity rights because they have not invested time, money and energy in the creation of a commercially valuable persona" (p.119)
* pub rights closely match arguments from self-ownership, though don't fully address the extension of the self into the public sphere in the form of created information artefacts of course

E - Broadly usable information resources (pp.121-122)
* Benkler: "the range of uses an individual is privileged to make absent individual facts"
* encompassing e.g. time shifting, quotations and other fair use exceptions
* Samuelson interprets this as meaning "those information resources that are freely usable and those as to which an owner can exercise exclusive rights", though it seems more accurate to talk of "unrestricted information uses as to thoes an owner can exercise exclusive rights to prevent", which captures fair use better
* used to promote "a more public-regarding politics of intellectual property"

F - Contractually constructed information commons (pp.123-127)
* basically copyleft, echoing Benkler's definition but also encompassing extra rights granted by authors to the public
* "because they promote openness and widespread uses, these information resources are regarded by some commentators to be functionally similar enough to IP-free public domain materials to be included in the definition of this term" (p.124)
* also mentions Reichman and Uhlir who want a contractually constructed information commons for scientific research, to claw back the academic tradition from privatisation (useful citation to back up Himanen... 124-127

G - A status conferring a presumptive right of creative appropriation (pp.127-129)
* basically transformative fair use
* to make the public domain more dynamic and robust, rather than being a sanctuary, Prof. David Lange conceives of "a status that arises from the exercise of the creative imagination... confer[ing] [on authors] entitlements, privileges and immunities" to appropriate other works in the course of creating new ones
* Lange sees it as an affirmative right, rather than a defence in court cf. fair use, overriding any economic or reputation impact
* Lange was concerned about an extensive right of publicity hampering artistic freedom, the conflict of the two `rights' creating opportunities for a kind of censorship

H - A cultural landscape (pp.129-130)
* Prof Julie Cohen suggests that the proper approach to defining the PD is to pay "careful attention to creativity as a social phenomenon manifested through creative practice", rather than deriving the definition from legal traditions or the creative industries' market systems
* Similar to Lange, Cohen sees this approach as requiring that creators have "baseline rights [to engage in] unplanned, fortuitous access and opportunistic borrowing" - "if we as a society want to facilitate the development of artistic culture, copyright doctrine should recognise rights of access to the common in culture to a far greater extend than it currently does"

I - A communicative sphere (pp.130-132)
* Prof Michael Birnhack says the PD plays "a crucial role in personal self-development, learning, experiencing, imagining, speaking with others, creating new works for the benefit of ourselves and wider circles, starting from the immediate intelocutor and up to the entire community" -- closest to acknowledging the range of benefits of cultural freedom that I explore in the fourfold analysis of beneficial use
* On the social sphere, Birnhack provocatively claims that "both the public domain and the idea of freedom of speech stem from the same source" in the sense that the both "construct... a communicative sphere, where people can interact with each other in various circles"

J - Publication of governmental information (pp.133-134)
* Prof Edward Lee - a PD of governmental information that "helps to establish a legal restraint against government overreaching by ensuring the public's access to materials that are essential for self-governance and learned citizenry"

K - A domain of publicly accessible information (pp.134-135)
* this acknowledges that IPRs may in fact make information more accessible, e.g. patents promote the publication of information
* this simply reinforces the ambiguities introduced by discussions of *real* cultural freedom as opposed to the more libertarian ideal of freedom-from-restriction
* picked up on p.163 in the case of Lexis and Westlaw who proprietise PD legal information and provide widespread access to it, making the information resources more widely available than the numerous IPR-free points of access. "Access controls and commercial licensing are strategies for recouping the expenses of providing these added values."

L - The unpublished public domain
* private works such as journals, preparatory works such as first drafts, and publicly displayed or performed works that aren't technically counted as being "published" (yawn, conceptually very different from the first two types)

M - The romantic (or imperialist) public domain
* Indigenous people may want protection for commercially valuable traditional knowledge, that would otherwise be (and indeed commonly is) appropriated without compensation by Western commercial interests, and so advocating the PD can seem like another form of Western imperialism
* the PD may also be an impediment to distributive justice, where patents and to a lesser extent copyright could distribute the global North's wealth to the global South in return for access to their knowledge
* although sympathetic with the goals of Northern PD advocates, Chandar and Sunder caution against a romantic conception of the PD that militates against any new appropriation, and so masks the disadvantage suffered by indigenous populations"
* c.f. Liang and co. about fighting IP within countries without strong IPRs as an alternative angle, and the Honeybee network for a practical attempt to learn from Chandar and Sunder's point

The definitions can be clustered according to three criteria: (pp.145-147)

i - The legal status of information resources (whether or not they're encumbered by IPRs)
ii - The freedom to use information resources (more or less, encompassing i but also for example Benkler's PD E)
iii - The accessibility of information resources (in Samuelson's discussion, a very thin liberal understanding to account for other legal restrictions such as classified secrets, unpublished works and the pro-patent argument in PD K)

Samuelson turns these criteria into a matrix, and derives a heirarchy of desirable situations: (pp.150-151)
1 - Freedom to use and accessible
2 - Encumbered by IPRs but broadly usable and accessible
3 - Inaccessible but IP-free iresources

This contradicts the ethical imperative endorsed by Stallman and Myers, but then 'accessible' needs defining to sharpen this claim.

p.155, useful note - "A copyright lawyer might explain, for example, that it is permissible to copy ideas or information from a copyrighted work because section 102(b) of the [US] Copyright Act of 1976 excludes them from the scope of copyright protection"

Look up Jessica Litman, Digital Copyright (2001), pp.29,181 for a discussion of why the public doesn't respect and abide by copyright law... "perhaps copyright professionals should reflect on the arcane and nit-picking language that copyright law and its statutory Categorisation provides" (p.156)

Samuelson suggests that Benkler's PD (E) is the most sensible use of the term 'PD' when addressing a general audience, although in legal discourse such as use is confusing.