Public Domain Day

Today is Public Domain day and James Boyle reports:

In Ray Bradbury’s 1953 classic, Fahrenheit 451, a “fireman” is a man who burns books “for the good of humanity.”   Written at the height of the Cold War, the book paints a shockingly dystopian picture of a culture at war with its own printed record, one deeply infused by Bradbury’s love of books. When the book was written, Bradbury got a copyright term of 28 years, renewable for another 28 years if he or his publisher wished.  Most authors and publishers did not bother to renew – very few have a commercial life longer than a few years.  That meant that about 93% of books and 85% of all works from 1953 passed into the public domain within 28 years.  But Bradbury’s book was a commercial success.  The copyright was renewed and as a result it would have been entering the public domain tomorrow – January 1, 2010 – Public Domain Day.

You could reprint it, make a low cost educational version, legally create a braille or audio book edition, even base a new film or play on it. All without asking permission or paying a fee.  But copyright law has changed since then.  Copyright terms have been twice retrospectively extended.  Now, Fahrenheit 451 is not slated to enter the public domain until 2049.


Not clear why anyone should ever lose their property-rights in their creation!

"Not clear why anyone should ever lose their property-rights in their creation!"

It's not clear to you that there should be any limits to the state-imposed monopoly of intellectual property?

What planet are you from?

All property rights (in our world) are created by the state; why is my right to my book any more a monopoly than my right to my boat or land? You have things stylized in a false way.

The property rights system we have was the product of experimentation over many generations. It was found that allowing property to ever fall into the public domain caused more harm than good, because land that is unowned tends to be abused and undeveloped due to abandonment, where-as IP did not, because IP that is public domain tends merely to be copied by others, not abandoned by its natural owners, which in the case of copyright are often already dead and therefore received all the incentive from their IP that they are ever going to get.

robust intellectual property laws work the same as robust real property laws. the tragedy of the commons in real property works the same as the tragedy of the commons in intellectual property. the recent extensions for copyright (although one can disagree gently with the length of the last extension) are great public policy ideas. successful originality is human (and America's) killer app. - more (wise and moderate) ip protection, not less!

It was found that allowing property to ever fall into the public domain caused more harm than good

For Disney, maybe. Would we really be better off if we had to pay Shakespeare's heirs for every production of Hamlet, and if they could veto remakes?

successful originality is human (and America's) killer app

IP laws that are too strong stifle creativity. Every nontrivial computer program violates all sorts of software patents, most of which should never have been issued. Large players get around this by cross-licensing each other's patents, small players constantly have the threat of lawsuits hanging over them, and patent trolls can profitably extort payments by threatening expensive litigation. This isn't good for anyone except lawyers.

"Copyright terms have been twice retrospectively extended." Isn't that meant to be unConstitutional?

that caveman story sounds like an argument for "efficient theft"

It's a travesty that the supreme court didn't rule retroactive extension unconstitutional. The copyright clause begins with the subordinate clause "To promote the Progress of Science and useful Arts...". If that clause has any meaning, it must mean that Congress has the power to grant copyrights only insofar as it promotes production. But a retroactive extension can't promote the production of more works in the past. Congress does not have the power to do this. The court, in this case as in many others, shirked its responsibility to limit Congress's law-making powers.

Note that this argument applies even if you are an intellectual property absolutest and believe that copyright should be foverer. It's about what the constitution says, not what is morally right.

I just realized that someone could short sell a book by borrowing it from the library, selling it, then buying it back in the future, hopefully at a reduced market value which is enough to cover the late fees.

Marian, I agree with you for the most part, particularly regarding software patents, but why shouldn't the author of a book get royalties from it for at least as long as they live? What if the work becomes much more popular 25 years after its initial release? Would authors be as motivated to try to write works that would still be relevant 25 years hence if they knew they wouldn't get paid for it after only a few years?

Firstly the ban on ex post facto laws only applies to criminal law not civil law. You cannot criminalise an act which was legal at the time it was taken. Copyright is civil law. Secondly in any event the extension means that an act which would have been lawful was now unlawful. Even when, as in the UK, the copyright extension was applied to works that had already come out of copyright the making further derived works was unlawful any editions or derived works published in the interval remained lawful and could remain in print without needing permission. There is no ex post facto element in the law and activity that would have been lawful remained unlawful for longer. The relevant action is the making of the copy not the original work, if the original work was in copyright at the time the copy was made then permission is needed.

Rob: being a classical music freak, I notice that some of the best music ever written was composed way back in time, when no IP restrictions applied. My theory is that really great artists do not produce their works because they want to make money of them; rather, they produce their works because they have to; their internal pressure of living inspiration simply forces them to put things on the paper.

In my view, having a constant number like 10 or 20 or 25 years since the day of publication is more practical and workable. For start, you do not have to inquire whether the artist is still alive or no (try finding a Chinese artist with name like Huo Jiu, or an American artist with name like John Black - not every author is a celebrity. People move, change their names, and leave no publicly visible trace). Second, it protects the family of the author from struggling in case that the author produces his opus magnum, and drops dead immediately after, a la Mozart.

What if IP owners had to pay for extensions to the copyright after some fixed period? It would make figuring out if something was still in copyright a little trickier, but it would surely mean that a lot more stuff got freed up earlier rather than later.

Am I correct in thinking that despite the constant push to extend copyright terms, thanks to the wonders of the internet in reality people are always able to access works via countries with the shortest copyright terms? This isn't very good from a legal or ethical perspective, I guess, but it gladdens my heart to think that the people constantly pushing to extend copyright terms will always be fighting a losing battle against the international nature of the web.

While I somewhat agree with a lot of the anti-patent comments, I think there are some benefits to a corporation profiting from a book even after the writer is dead. A person only has a finite lifespan, but a corporation can theoretically "live" forever. Even if the company is sold off, there is still residual value in its existing copyrights. By allowing a corporation to benefit for 200 (500, infinity) years, they can offer a larger upfront payment to the writer during his or her lifespan. It effectively allows writers to be paid the present value of the infinite stream of payments their works will create.

So that’s a few more authors whose intellectual property (wit, imagination, ingenuity, creativity and sheer hard slog) you can pinch without having to break sweat yourself or put your own grey matter (if fitted as standard) in gear.

Brett Dunbar wrote: "Copyright is civil law."

So what's up with everyone's favorite ten seconds of mandatory DVD introduction? I refer of course to:

"FBI WARNING. Federal Law provides severe civil and criminal penalties for the unauthorized reproduction, distribution, or exhibition of copyrighted motion pictures, video tapes, DVDs or video discs. Criminal copyright infringement is investigated by the FBI and may constitute a felony with a maximum penalty of up to five years in prison and/or a $250,000 fine."

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