COPYRIGHT CORNER
PRESERVING THE PUBLIC DOMAIN
September 2003
From time to time this column has discussed the public domain and the important role it plays in U.S. copyright law. There are two recent developments with significant potential to enhance the public domain. In fact, they are aimed at increasing the amount of material in the public domain in the face of the changes wrought by the Digital Millennium Copyright Act and the Supreme Court’s upholding of term extension.[1]
Creative Commons
The most comprehensive is the development of the Creative Commons,[2] launched in 2001. The brain child of Professors Larry Lessig of Stanford and James Boyle at Duke, the Commons encourages creators to place their works in the public domain. Should the author/creator not want to go that far, it encourages her to grant broad rights to the public through nonrestrictive licenses. The purpose of the Creative Commons is to increase the amount of raw source material available online as well as to make access to it easier and at lower cost.
It has never been authoritatively determined whether one can even place a work in the public domain. Under earlier laws, copyright registration and notice were required in the United States; thus publication of the work without registration or notice resulted in dedicating the work to the public domain. With the elimination of these formalities of copyright under the 1976 Copyright Act, it is not easy to put a work in the public domain since copyright attaches immediately upon creation of an original work and fixation in tangible medium of expression. Whether and how to revoke this automatic protection has been the basis of scholarly debate. If it can be done, it certainly would require an affirmative act to revoke copyright.
The Creative Commons recognizes this controversy but attempts to create a method to deed works to the public domain. It has also developed metadata that can be used in order to associate these works with their status as a public domain work. Eric Eldred’s Eldritch Press has deeded all of its publications to the public domain through the Creative Commons.
Later this year the Commons will work to build an “intellectual works conservancy,” described as being similar to a land trust or nature preserve to ensure that works in the public domain are not claimed by private parties. Authors will be encouraged to place their works in this public trust. Whether this action works remains to be seen, thus, the licensing alternative may be more successful.
The licenses offered by the Creative Commons are free and machine-readable.[3] They may be used for creative works such websites, scholarly works, music, film, photography, courseware, etc., but not for computer software. The blank forms are available on the Creative Commons website. The primary idea is to permit owners to hold onto their copyrights but to publicize the fact that their works are available free which should result in greater online sharing. The licenses permit greater use of the work than would be allowed under traditional fair use. For example, a license might permit all non-commercial uses while prohibiting only commercial ones without a specific license from that commercial user. This would permit the copyright holder to commercialize a work and earn income from commercial uses. The owner determines what rights he will grant. Some will permit others to use their work in any way as long as they receive attribution, i.e., credit for authorship. Others may allow use and distribution of verbatim copies of their works but not allow any derivative works to be created without their permission, or the author might permit derivative works to be created but insist that users share royalties with her on a 50-50 basis.
One of the most interesting licenses that the Creative Commons offers is called the Founders’ Copyright. It permits the copyright holder to claim copyright for 14 years just as was done by the Founding Fathers in the 1790 Copyright Act or for 28 years as provided under the 1909 Act. During the period of copyright claimed by the author, the Commons will list the works along with the projected date at which the work will enter the public domain. The cost of this license is $1. O’Reilly & Associates, a publisher of commentary about technology and society, has several hundred titles under the Founders’ Copyright; they are listed on the Creative Commons website.[4]
The Creative Commons launched the iCommons in March 2003 which will draft country-specific licenses. The first two countries covered are Finland and Japan. Countries that wish to participate need to provide a knowledgeable person (likely a lawyer) to work with the staff at Creative Commons to develop licenses based on the legal system and laws of each country. The aim of the international licenses, as with the U.S. licenses, is to create licenses that are easy to access, understand and use by non-lawyers.
Public Domain Enhancement Act
The second development is the proposal by Eric Eldred (plaintiff in the term extension case) to give copyright owners unfettered rights for 50 years after the author’s death, but to require the owner to file a notice of continuation and pay a $1 fee or tax at the expiration of the 50 years in order to continue the copyright for an additional 20 years.[5] It is called the Public Domain Enhancement Act, also referred to as the Eric Eldred Act. It is estimated that for works published between 1923 and 1942, the first 20 years affected by the Copyright Term Extension Act, only 2% have any lasting commercial value. Therefore, the owner of the copyright would be unlikely to pay the $1 continuation of copyright fee for these works. If this is accurate, a huge amount of material would pass into the public domain if this were enacted.
The proposal is favored by individuals and groups that encourage a strong public domain, but it is opposed generally by the copyright owner community. There are also concerns about whether this proposal runs contrary to international treaties. One of the provisions of the Berne Convention is that a member country may not require any formalities to perfect the copyright. Requiring the filing and payment of the nominal fee could be viewed as such a formality, or it might be determined that formalities apply only to the initial acquisition of the copyright by the author/creator. Another possible solution might be to require registration of the work for the term beyond the 50 years that Berne requires as a minimum standard. It is not known how any of this would be interpreted by a court, however.
With no published work entering the public domain before the end of 2018, the concern about the vitality of the public domain is real. The Creative Commons represents a highly successful way either to put works into the public domain or to make works widely available free of restrictions. The Eldred proposal is more controversial but represents some creative thinking about the problems of the shrinking public domain.