I recently received an email from an author asking me if I would write a post about why we need a public domain.  Specifically, the questioner asked me why some things pass into the public domain while others do not; his example was that if you write a song, it eventually becomes PD, but if you make a chair you can keep it forever and “continue to draw enjoyment from it.”

It is understandable that the public domain is a source of annoyance and bewilderment to many creators.  Their creations often seem like their children, and the expiration of copyright like an act of snatching those children away.  My correspondent suggested that more people do not challenge the public domain “because everyone likes free.”  But as I hope to suggest in this public answer to the question, the public domain is not free at all; it is purchased at the price of the copyright monopoly. The two things are different sides of the same coin.  Were it not for the state-granted exclusive rights in copyright, there would be no need for the public domain.  And we can imagine such a social arrangement; I just do not believe that most creators would think of it as an improvement.

We can begin with a deceptively simple question: Why is a chair different from a song?  There are two reasons that matter here, I think.  The first is that the song is intangible, which means that it is, in economic terms, “non-rivalrous.” and non-exclusive.  That is a fancy way of saying that multiple people can possess an intangible good at the same time.  George Bernard Shaw is credited with having expressed this truth succinctly:

If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple.  But if you have an idea and I have an idea and we exchanges these ideas, then each of us will have two ideas.

Obviously I can sing a favorite song without depriving anyone else of that pleasure, just as books can be printed in multiple copies so that many people can enjoy the same work without disturbing each others’ enjoyment.  Only one person can sit in a chair at the same time, however (usually, at least).

The other difference is that a chair, as a piece of tangible property, is bought and sold on a basically unregulated market.  The chair maker sells her creation to whomever she can find, and once she does so, she surrenders control of it entirely.  If another carpenter wants to copy it, he can do so and try to sell his copies.  If he charges less, the competition will benefit chair buyers but not chair makers, since it will probably drive prices down.  That is simply the chance one takes in a free market.

The market for intangible goods is not a free market, however.  It is controlled by a state-granted monopoly called copyright. That is, the state gives a copyright holder rights that makers of other types of goods do not get.  The most obvious one is protection against copying.  The chair maker takes her chances in an open market, but the song writer benefits from a protected market that virtually eliminates competition for the goods he wants to sell.  No one is allowed to make copies of his song and sell it for less, or to perform it in public without his permission, and those prohibitions are enforced by our courts.  The reason for this is the fear that if intangible property were subject to a free market, it would be too easy to make copies of songs or books or movies and sell them for less, just as carpenters are allowed to do.  This would be good for consumers, of course, because it would lower prices, but it is felt that it would so reduce the incentive for creators to create that we would suffer a shortage of poems and songs and films.  Thus we give extra rights — rights that come with a social cost — to people who create intangible goods, and we call those rights “copyright.”

There is a clear relationship between these extra rights we give to copyright holders, that other creators and sellers of goods do not have, and the need for a public domain.  Imagine for a minute that we gave similar protection against copying to chair makers.  Eventually the ability to make a new chair would evaporate, since all of the possible designs that could serve the chair function would have been done by others, and all new chairs would be infringing.  How could we solve this problem?  By declaring that after a certain period of time — a period long enough for the chair maker to profit from his creation — older chairs would become free for others to imitate.  This “public domain” for chairs would be required to keep up the supply of places to sit, if we decided to grant a state-enforced monopoly in chair design similar to copyright.

So the public domain is a required part of a system that allows creators to have monopoly control.  It reduces the social cost of the monopoly by allowing less expensive editions of books or songs after that period during which an author or songwriter has the opportunity to make a profit.  Remember that a chair maker can profit only once, when she sells the chair she has made.  She must keep making chairs if she is to sustain a living.  An author, on the other hand is allowed to profit exclusively during his entire lifetime for writing just one book, and even to pass that exclusive right to make a profit on to his children and, probably, grandchildren (based on a copyright term of life of the author plus seventy years).  This obviously has a social cost; would J.D. Salenger have written more great novels if he had not been able to make a fortune over the 6o years of his life after Catcher in the Rye from sales of just that one book?

The most onerous cost of the copyright monopoly would be this potential reduction in new creativity.  The creation of new works depends in so many cases on building upon things that have gone before.  Shakespeare copied freely from earlier sources, just as George Harrison copied, albeit unconsciously, when he wrote “My Sweet Lord.”  New intellectual property is always created “standing on the shoulders of giants,” and the public domain is a way to ensure that the copyright monopoly does not become a check on new creation rather than the incentive it is supposed to be.  This is why the Constitution, in the clause that authorizes Congress to grant a copyright monopoly, stipulates that that monopoly be “for a limited time.”  The public domain is a required part of the social and legal system of copyright protection.

As I said at the beginning, it is possible to imagine an alternative social system.  Suppose we decided that we wanted neither exclusive rights (the copyright monopoly) nor the public domain. Instead, as a society we decided that authors and songwriters should be on the same footing as carpenters and everyone else who created tangible goods; all should compete on an equal footing in a free market.  In the short term, this might be good for consumers.  Songwriters would have to sell their songs once for the most money they could get, since their ability to make continuing profits over time would diminish.  Companies and consumers would then be free to either share the song freely or undercut the sale price of competitors, so it would be easier and cheaper to obtain music, and the threat of litigation over sharing would vanish.  In the long term term, it is hard to say whether this would be beneficial or harmful.  The conventional wisdom is that creators would stop creating because they could not make a living.  But maybe they would become more like carpenters, depending for continuing income on continuous creation.  If that happened, society would benefit from more creation instead of less.  As for the public domain, without the exclusive rights in copyright, society would not suffer the same costs and therefore would not need the same bargain that results in the public domain.  And creators would be in the same situation, again, as chair makers; they could enjoy their creation in perpetuity, as long as they decided not to sell it.  But, like the chair, once the song was sold it would be beyond the creators control forever.

I doubt that this scenario appeals to many creators.  But I hope it helps illustrate why copyright and the public domain are inseparable concepts; they go together, as the old song says, like love and marriage.

 

I was reminded once again of Mark Twain’s comment — “Only one thing is impossible for God: to find any sense in any copyright law on the planet” — as I listened to Professor David Nimmer deliver the annual Frey Lecture in Intellectual Property at the Duke Law School this week.  As the person now responsible for revising and updating the seminal treatise Nimmer on Copyright, which was begun by his father over fifty years ago, Professor Nimmer has the monumental task of trying to make U.S. copyright law and jurisprudence coherent by creating a framework that makes it all (or most of it) make sense.  Judging from his lecture, it is a task he embraces with grace, humor and aplomb.

The title of Nimmer’s lecture was “Infringement 2.0,” and his overall framework involved the changing role of copyright and infringement in the current environment, where copyright protects every scrap of original expression, whether the creator needs or wants that protection, and where copying and widespread distribution can be accomplished with the click of a mouse.  I want to try to outline several points from the lecture that seemed especially interesting to me (fully recognizing that I alone am responsible for any misrepresentations of Prof. Nimmer’s meaning).

Nimmer began with a more qualified definition of infringement that we tend to think about normally, in my opinion — the unauthorized wholesale copying of works of high authorship.  Not just unauthorized copying, but wholesale copying of works of high authorship.  This definition seems to suggest that courts should not spend time worrying about copyrights in family photos and other ephemera; Nimmer even raised the question of whether we should protect pornography, although he immediately recognized the First Amendment issues that such a stance would raise.

With this qualified definition of infringement as a starting place, Nimmer took us on a tour of some recent copyright rulings.  What I found really interesting was his suggestion that courts are using fair use, in the digital environment to approximate the qualified definition of infringement that he suggested.  Two examples will have to suffice.  In the case involving the anti-plagiarism software Turnitin (A.V. v. iParadigms), the Fourth Circuit rejected an infringement claim based on the copying of entire student papers that are submitted to the service and stored to be used for comparison against later submissions.  The Court reached this result by finding that Turnitin’s use was a fair use, and Nimmer suggested that this use did not meet his qualified definition of an infringement because it did not copy works of “high authorship.”  More significantly, perhaps, Nimmer also approved of the District Court decision in last year’s Google Books case that Google’s scanning of millions of titles was a fair use.  In his framework, Google’s scanning did not amount to “wholesale” copying; even though entire works are scanned in to the database, users see only “snippets,” and those very short excerpts serve important social purposes.

Whatever one may think of the individual cases, this was a fascinating approach.  The copyright law says that what is fair use is not, therefore, infringement, so it makes perfect sense, for one sufficiently learned and bold, to try to understand fair use jurisprudence by looking at the limits on infringement that are thus defined by implication.

Another topic Nimmer addressed at length was the doctrine of first sale, and he was highly critical of the Ninth Circuit decision in Vernor v. Autodesk, which found that Mr. Vernor committed copyright infringement when he resold legal copies of CAD DVDs in apparent violation of licensing terms.   The Ninth Circuit spent a lot of time examining those license terms, but Nimmer suggested that they were asking the wrong question.  The proper question here, he suggested, was not “was this a sale or a licensing transaction,” as the Court assumed, but rather “who was the legitimate owner of the material substrate that made up this copy?”  He pointed out that in both the foundational Supreme Court case about first sale, from 1908, and in last year’s decision in the Kirtsaeng case, the Court was dealing with legal copies where an attempt had been made, through a license, to restrict downstream resale of those copies.  In both cases the Supreme Court ignored those attempts at licensing and allowed the legitimate owner of the material copies to resell the works on whatever terms he could negotiate.  Based on those precedents, Nimmer suggested that the Ninth Circuit erred when it found that Vernor had infringed copyright with his resale, based on provisions in the purported license.

Another place where Nimmer suggested a radical way to rethink the copyright environment was on the international front.  He asserted that the foundational principles of international copyright agreements — the prohibition of formalities and so-called “national treatment” — simply do not make sense in the Internet age, where potential copyright infringements nearly always cross national borders, and copyright owners are often impossible to locate.  He suggested that this out-dated approach be replaced by something the U.N. and the W.I.P.O could do very well — a searchable, worldwide registry for copyright owners that Nimmer called a “panopticon.”  His idea is that if a copyright owner has registered his or her work in the panopticon, they would be entitled to significant remedies for any act of infringement that is found.  If they do not register, however, a action for infringement could only result in an award based on actual losses, not the much more substantial “statutory damages” that are often available.

This idea is nothing if not ambitious, but its foundations are commonsensical.  If copyright protection is going to be completely automatic, and no notice on individual works is required, it is unfair to insist that users must have authorization for their uses if the rights holders have done nothing at all to make their claims known or to facilitate asking for permission.  Lots of other property rights regimes have notice or registration rules (think of buying a house or a car) and those rules are in place to protect the owner.  Why not a similar regime for international copyright, with an incentive, in terms of potential recovery available, for participation?

Finally, I want to end with Nimmer’s prediction about the prospect of a new copyright act in the United States.  It seemed that he does believe that Congress will seriously undertake such a thoroughgoing revision of the law, and he suggested a betting pool on when the new copyright act would pass.  For himself, he wanted to reserve a date in May of 2029.  So we have that to look forward to.

 

 

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