David Branigan for IP Watch, Link (CC-BY-SA)
Open access advocates in the United States are celebrating the expiration, and non-renewal, of the Copyright Term Extension Act, which introduces into the public domain all works from 1923, and signals an end of the practice by US lawmakers to continually extend the terms of copyright protection.
Leading figures from groups such as Creative Commons and Wikimedia Foundation gathered to discuss why this shift in policy took place, and what it means for the public domain. They asserted that this change is the result of a general acceptance of the value of “the commons,” brought on in part by the era of the internet.
This discussion took place at the event, “An Expansion of the Commons: Copyright, Creative Commons and the Public Domain,” co-hosted by Wikimedia DC, Creative Commons USA, and the Program on Information Justice and Intellectual Property (PIJIP) on 15 January at American University Washington College of Law in Washington DC. A video of the event is available here.
The Sonny Bono Copyright Term Extension Act [pdf] of 1998, which expired on 1 January, extended copyright terms from 75 years to 95 years. It followed the Copyright Act of 1976, enacted in 1978, which had previously extended the term to 75 years. Participants explained that the expiration, and nonrenewal, of the Act is significant because it has broken the cycle of continued extension of copyright term limits by US lawmakers.
Now that this cycle is broken, works from 1923 have entered the public domain, and are available to be used freely, for any purpose, without any copyright protection. Each year, another year’s worth of works will enter the public domain, and according to the panellists at the event, this is “cause for celebration.”
Public Domain: From “Junk Heap” to “Cultural Resource”
“After so many years of delay and deferral, a regular flow of material into the public domain recommenced,” Peter Jaszi, professor emeritus at American University Washington College of Law and co-founder of PIJIP, said at the event.
Concerned that “someone might still leap up and clutch it back,” he had not wanted to talk much about it in public. However, now that January is passing and this hasn’t happened, he said, “We might actually have cause for celebration.”
Jaszi explained that in the 1970s, he would not have predicted that this shift would have taken place. Lawmakers often confused the idea of “the commons” with “communism,” he said, and despite his efforts at the time, he could not make persuasive enough arguments for the value of the public domain, which he sees as “a resource for creativity.”
For many years, he said that the idea of the public domain was generally seen as a negative space, rather than a positive public asset. Over time, however, this changed.
Since the 1970s, a new dispensation in favour of copyright fair use developed, which he said led US courts “to reimagine, reconstruct and dramatically expand the copyright fair use doctrine.”
While this is not the same as public domain, he said “it enables the same kind of creative reuse of public information.”
“Part of what has also changed, was the internet,” said Prof. Michael Carroll of the American University Washington College of Law and founding board member of Creative Commons. The internet created a new constituency for the public domain that did not exist before, he said.
The negative perception of the public domain as a “junk heap” shifted in the era of the internet to a more positive perception of it as “cultural resources,” with the internet as the repository of these resources.
Creative Commons: Offering “New Spaces for Creative Re-use”
In 1998, Carroll explained, a legal challenge to the Sonny Bono Copyright Term Extension Act took place. In the Eldred v. Ashcroft case, those challenging the Act argued that it “violated the Constitutional requirement that copyright should last for a limited amount of time because the Act retroactively extended copyright terms,” according to a Creative Commons blog.
While this case was lost, Carroll said that out of this loss, Creative Commons was born. The Creative Commons founders asked “if we can’t cut back the extension of copyright, can we create new spaces for creative reuse?”
Carroll explained that Creative Commons then became a movement to create a new form of licensing that empowers “creators with a choice to tell the public they don’t need the full copyright protections offered by Congress.”
The goal, he said, was “to mark on the internet use rights in a way that is easy to understand.”
Creative Commons offered creators a range of six options for how to licence their works. More information on these licensing options can be found here.
Wikimedia Commons: A Repository for Works in the Public Domain
As new creative works are entering the public domain, Sherwin Siy, senior public policy manager at Wikimedia Foundation, said that it is important to “create and curate” a space where public domain works can reside.
Wikimedia Commons, Siy explained, is such a “repository of media, images, and sound files that are intended to be used across Wikipedia projects,” but that are also available for anyone to access and use.
Public domain, he clarified, is different from Creative Commons licensing, and fair use. For public domain works, people can use works freely without worrying about any terms of use or legal considerations.
This year, many new works have entered the public domain. Robert Fernandez, board member of Wikimedia District of Columbia, said that one such work is Khalil Gibran’s “The Prophet,” which he described as “very popular with hipsters and couples.”
There are many other such “gems” newly available this year, he said, along with plenty of what some might consider to be “junk.”
According to Siy, that is fine, because the law should not discriminate between the works that enter the public domain. “We don’t want the law, we don’t want a bunch of lawyers, we don’t want judges to serve as gatekeepers to what we consider art,” he said.
While these works in the public domain can be useful or valued by anyone, they are particularly useful for educators that are looking for freely available educational resources, Meredith Jacob, assistant director for academic programs of PIJIP, explained.
Fair use doctrine, she said, is powerful, but it is limited. “There is this real demand [among educators] for materials in which they don’t have to make the fair use considerations.”
In conclusion, Jacob said that when thinking about building a constituency for public domain and for fair use, it is important to talk to people about how public domain and fair use furthers their needs on the issues that they are passionate about, such as “education or silent films.”
Going forward, she said, this approach will be more effective than trying to convince or persuade people to support public domain or fair use on general principle.
