4/5/00Besser--Public Domain, VRA 2000 1 The Disappearing Public Domain: What is is, what’s...

4/5/00Besser--Public Domain, VRA 20001

The Disappearing Public Domain:What is is, what’s happening to it, and why

should we care?NINCH Town Hall MeetingVRA San Francisco 4/5/00

Howard BesserAssociate Professor

UCLA School of Education & Information

http://www.gseis.ucla.edu/~howard/


The Disappearing Public Domain-

• Very short history of Public Spaces and how they’ve started to disappear

• The erosion of the public domain


Very short history of Public Spaces

• The Agora

• The Commons

• Europeans settling America


Public Spaces are rapidly disappearing in the late 20th Century-


Bath bathrooms circa 1650


Paddington Station


Public Spaces are rapidly disappearing in the late 20th Century

• No more privacy in public spaces-

• The rise of pseudo-public spaces

• Broadcasting

• The erosion of the public domain-


Street-cams


3 blocks of NYC

Map compiled by Matt McCourt and Carl Dahlman, Department of Geography, University of Kentucky


Enemy of the State


Conversation at Westwood Farmers Market



• No more privacy in public spaces

• The rise of pseudo-public spaces-

• Broadcasting



Public Space is no longer public

Private Property. Permission Private Property. Permission to pass revocable at any time.to pass revocable at any time.


Beverly Center Mall


Wisconsin Mall


Bookstores replace Libraries


Westwood Farmers Market



• No more privacy in public spaces

• The rise of pseudo-public spaces

• Broadcasting-



Static Over Low-Powered RadioNYT Editorial, 3/31/00


The erosion of the public domain-

• What is it?

• What threatens it?

• Why should we care?


Constitution, Article 1, Section 8

• The Congress shall have power ...to provide for the ... general welfare of the United States To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Underlining added


What is Copyright?

• Copyright is a delicate balance btwn users and creators, but is supposed to be clearly oriented towards the public good

• Copyright is NOT an unlimited Economic Right• Copyright is really a temporary monopoly right

granted to creators in order to fulfill the societal need to increase creativity

• The Copyright monopoly is temporary, then works become freely available for all purposes


What’s part of Public Domain?

Still is• Air• Sunlight• Numbers• God• Ideas & Facts**

Was• Water• Land


Lawyers defining the Public Domain

• "things in the public domain can be appropriated by anyone without liability for infringement" (Black's, 1996)

• “the law’s primary safeguard of the raw material that makes authorship possible” (Litman, 1989)

• “a commons that includes those aspects of copyrighted works which copyright does not protect"” (Litman, 1990)

• the converse of property rights in information where the government prohibits certain uses or communications of information to all people but the owner; the public domain “is the range of uses privileged to all” (Benkler, 1999)

• “the ultimate source of all new works (because nothing is ever wholly new in and of itself)” (Karjala, 1998)

• “copyright’s raison d’etre is to benefit the public by encouraging the production and dissemination of new copyrighted works” (Kreiss, 1995)


A simpler description

• resources freely available for all members of society to do whatever they want with them

• no permissions or fees required

• no tracking of what you read or use


Importance of Public Domain

• Common Heritage (philosophical)

• New Knowledge incorporates Old (progress)

• Derivative Works rely upon pre-existing Works (creativity)

• Social Commentary (free speech)


What threatens it?-

• Term extension

• Returning out-of-copyright works back to copyright

• Mickey Mouse

• Licensing

• Other forms of Contract Laws


Time before works enter public domain

Law Duration1709 British 14 years

1790 US 14+14 years

1909 US 28+28 years

1976 US 75 years

1998 US 95 years

1998 US life+70 years


Lengthier Copyright Means

Date Term

Published 1923-63 67 years if renewed

Published 1964-77 28+67 years

Created before 1/1/78 Life+70 years or-12/31/02 if not published

-12/31/47 if published before end of 2002

whichever is greaterCreated after 1/1/78 Life+70 years (95/120

years corporate)


Works that should have already entered the Public Domain (but didn't)

• F. Scott Fitzgerald: Hot and Cold Blood and Invasion of the Sanctuary

• Zane Grey: Code of the West, Steelhead, Tappan's Burro,The Vanishing American, and Down into the Desert

• Ben Hecht: Fingers at the Window

• Rudyard Kipling: Independence and London StoneP.G. Wodehouse: Jeeves, First Aid for Dora Heart of a Goof, Leave It to Psmith, Magic Plus Fours, No Wedding Bells for Him,The Return Of Battling Billson, Rollo Podmarsh Comes To, Ukridge Rounds A Nasty Corner, and Chester Forgets Himself

• Virginia Woolf: Jacob's Room

• Film -- Sherlock Jr.


Works that should have entered the Public Domain in the next

few years (but won't)

• Irving Berlin: Blue Skies (2002)• Harry Woods: When the Red, Red Robin Comes

Bob, Bob Bobbin' Along (2002)• Oscar Hammerstein II and Jerome Kern: Ol' Man

River and Showboat (2003)• Mickey Mouse (2004)


Copyrighting Facts:Proposed Database Extraction legislation

• No requirement that the DB contain any original content (can copyright facts, government information, etc., taking these out of the Public Domain)

• DB owner given recourse, even if they didn’t suffer harm

• Implications on:– Transformative uses

– Uses other than those intended by the compiler (citation analysis)

– Copyrighting court decisions


NRC analysis of Coble Bill• reduce the amount of data that can be obtained, particularly from the private

sector or public-private partnerships, an increasingly important source of data;

• increase the cost of obtaining data, particularly from database owners with a monopoly on the data;

• restrict access to data for at least 15 years from the time the data was created;

• discourage the transformation of existing databases into new ones, creating artificial gaps in data availability;

• prevent the use of data for purposes other than than which it was collected, minimizing the scientific and societal value of original data; and

• increase restrictions on the use of compilations of all kinds, including works of authorship (e.g. collection of articles) not normally considered to be databases”

Linn, 2000


Economics and Contract Laws preempting long-standing rights

Moving long-standing common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply– extending reach beyond “first sale” to control Use

– shrink-wraps eliminating any negotiating power (UCITA)– shrink-wraps and technological protection don’t allow for fair use

exemptions

– licensing curtailing fair use

– Privacy invasions to prove licensing compliance


Further commodification of information

• Dismantlement of the public sphere in general

• Attempts to turn everything into a commodity (even things that don’t really behave like commodities)


Why does any of this matter?

• Derivative works

• Postmodernism

• Diminishment of exploration and experimentation

• Public discourse

• Democratic values (anyone can be a creator)


The Disappearing Public Domain:What is is, what’s happening to it, and why

should we care?

• http://www.gseis.ucla.edu/~howard/Copyright/publicdomain.html

• http://www.gseis.ucla.edu/~howard/Copyright/

• http://books.nap.edu/html/digital_dilemma/• http://www.dfc.org• http://www.pdos.lcs.mit.edu/~cananian/UCITA/• http://www.badsoftware.com/

• Lee Felsenstein, 'The Commons of Information,' Dr. Dobb's Journal, May 1993

4/5/00Besser--Public Domain, VRA 2000 1 The Disappearing Public Domain: What is is, what’s...

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