Tag: public domain

How Valuable Are Works That Have Lost Value?

Picking up on one of the big copyright themes of the month—the re-opened public domain*—scholars James Boyle and Jennifer Jenkins were hosted last week by Joshua Johnson on his show 1A, produced by public radio station WAMU in Washington, D.C.  Boyle and Jenkins are leading members of the Center for the Study of the Public Domain at Duke University Law, and, as one might guess, advocates for shorter terms of copyright protection.  A number of topics unrelated to the public domain were covered, but I want to focus on the central theme the professors bring to the discussion.

Using the metaphor of the iceberg, Boyle and Jenkins tell us that better than ninety percent of works under copyright have lost market value—that, in fact, most works lose their market value well within twenty years after publication.  Based on these data—assuming we can take them at face value—they assert that copyright’s term of protection serves some “two percent” of works while doing a disservice to society by “locking up” the lion’s share of works that no longer even generate revenue for their authors.  

From these premises, they derive the conclusion that copyright is failing in its purpose to “promote progress” by sequestering a vast trove of material that might be used to produce new creative works and/or may be useful for libraries and archives. In this regard, I believe they overstate the value of the public domain for new authors while taking the wrong approach to solving a legitimate challenge for librarians.

The Public Domain and New Authorship

The view promoted by Boyle and Jenkins is over-reliant on the generalization that creators build upon works that have come before.  This is certainly true, but not necessarily in ways that can be taken so literally as to assume that authors need a certain volume of works in the public domain the way a farmer needs a certain amount of nutrients in the soil.  

Only a segment of creators at any given moment seek to use existing works in ways that implicate copyright; and a portion of those uses can still be accomplished through licensing.  Add to this the lion’s share of creative production that neither considers nor conflicts with existing copyrights, and it’s little wonder that what data we have reveal a general increase in creative output, even after the term extension of 1998. 

The “shrinking public domain” narrative with regard to new creation is hard to reconcile with, for instance, IIPA reports that continue to show growth year after year in the core copyright sectors.  And, as noted in my last post on this topic, when it comes to enforcement, copyright critics never fail to mention that we’re enjoying more creative output than ever before. So, clearly, authors are not choking on the lack of PD material in the air.

Mapping the Works Under Copyright

Meanwhile, if there is value to the “iceberg theory” Boyle and Jenkins present, it begs important questions on its own. The reality that most works produced in any given period (regardless of copyright) lose market value fairly quickly is both obvious and, quite possibly, irrelevant.  For instance, out of that large mass of submerged iceberg, how many works are so inherently transient as to be of little to no discernible cultural value?  How many diet books, romance novels, auto-repair manuals, self-help guides, exercise DVDS, etc. comprise the ninety-plus percent of “locked up works”?  I don’t know that answer either, but it should be addressed before anyone slings around big numbers for dramatic effect.

In his book (and I admit to not yet reading the whole thing), Boyle insists upon the need for empirical evidence thus:

“I want to offer a suggestion that in any other field would be stunningly obvious, boring even, but in the funhouse mirror of intellectual property appears revolutionary. We should make our policy based on empirical evidence of its likely effects and there should be a formal requirement of empirical reconsideration of those policies after they have been implemented to see if they are working.” 

That being the case, Boyle should agree that it is not sufficient to refer generically to “what creators might do” with works that fall into the public domain that they might not otherwise have done while the same works were under copyright.  Most articles and blogs on the subject tend to be tautological.  Look at what could be in the public domain!  Copyright on a work could last over 120 years!  Copyright terms started as 14 years with a 14-year renewal in 1790!   All of these sparkly bullet points, or tweets, are attractive to the already copyright skeptical, but none of these statements demonstrates how the current term is too long.

Addressing a Real Need

All that said, there is indeed a subset of zero-market-value works under copyright for which there is a clear social interest, and which Boyle and Jenkins address in their overall advocacy.  Where libraries or archives have obtained an interesting collection of works—say a body of obscure sound recordings from the 1930s and 40s—the institutions are frustrated by the fact that the uncertain copyright status of these works makes them apprehensive about building what could be a very useful online archive.

The inability to identify the rightholders in these cases (a.k.a. the “orphan works” problem), combined with the duration of copyright leaves the library or institution stranded.  And, as per the “iceberg” metaphor, these works aren’t making anybody any money anymore, so the fact that they’re captured by copyright functionally contradicts copyright’s purpose to “promote progress.”

I agree with this complaint in principle, and so do many copyright advocates.  But focusing on the length of terms to solve the issue is both wrongheaded and a needless waste of resources.  If we first acknowledge that the librarians’ problem in this case is actually the result of a relatively new opportunity (i.e. making works widely available online), this reframes the conversation in context to historic precedent whereby carve-outs in the statute have been made specifically for libraries, archives, and other non-commercial, public-serving institutions. 

Because American copyright terms match those of the 175 other signatories to the Berne Convention treaty, a stubborn agenda aimed at shortening those terms is almost certainly a futile exercise; and even if some incremental “victory” were achieved (i.e. reverse the 20 years since the CTEA), this would not entirely solve the uncertainty/orphan problem for all those works the libraries and archives would like to make available.  It is politically and pragmatically more realistic to collaborate with copyright interests with the aim of carving out a new, digital-age exception based on the class of user rather than the duration of copyright on the various works in question.  

Likewise, returning to Boyle’s and Jenkins’s iceberg narrative, it would probably be easier, and more useful, to advocate a new statutory exception for libraries et al than to attempt to correctly map the universe of non-market-value, copyrighted works and then try to demonstrate—other than by leap of faith—how those tide pools of sequestered material are in fact stifling the creative growth of the nation.  As stated, it’s a very hard case to make against the backdrop of the visible part of the iceberg—a body of works under copyright, and with market value, that is already larger than the average person can experience in a lifetime.

*January 1 was the first day that copyrighted works entered the public domain since passage of the term extension in 1998.  

Are You Having a Public Domain Party This Year?

Should auld creative works be forgot,
And never brought to mind?

There may be any number of reasons to feel anxious about the coming year, but at least we can take comfort in the fact that the song “Yes! We Have No Bananas” will be entering the public domain.  Sure, this may seem like clinging to a bit of floating timber immediately after a shipwreck in the middle of the Pacific Ocean, but one must hold onto hope where one can and start paddling.

I wish I could remember the right comedian to credit, but whoever it was, he made a joke that resonates this particular New Year’s Eve in context to the “big” copyright news of the day.  He said, “We should legalize pot just so all the stoners will shut up about it.” In sympathy with this comic’s weariness at repetitive zeal for small matters, I too am excited about tomorrow’s milestone in copyright history when, for the first time, works protected under the terms of the Copyright Term Extension Act (CTEA) of 1998 will enter the public domain.*  

To be sure, I am not excited the way the folks are at the Internet Archive, who will be co-hosting an event called The Grand Reopening of the Public Domain, where attendees can join special guests like Lawrence Lessig and Cory Doctorow to raise a glass and toast the arrival of works published in 1923 as though they have been missing for years. No. I’m excited about this particular copyright threshold because it just might be the day when the ebullient crusaders of the public domain will finally shut up about it. I mean I know they won’t, but one can dream. It is the New Year after all.

You see, for a very long time, many copyright critics have been insisting—in academic papers, in blogs, in tweets, etc.—that the production of new creative works depends on a “rich public domain,” and, therefore, the 1998 term extension has been depleting the common creative wellspring like a badly managed natural resource. Of course, this is the talking point when the subject is copyright’s term of protection; when the subject is enforcement against mass, online infringement, the response from many of the same people is that we are “enjoying more creative works than ever before.” This cognitive dissonance is never acknowledged.

The belief that 2019 marks anything other than a symbolic milestone for copyright critics to share a group high-five is based on the parlor trick that it is always easy to make predictions which nobody can effectively disprove. I have little doubt that, in years to come, someone somewhere will do something interesting with works from 1923, 24, 25, and so on, as works published in these years fall into the public domain; but at the same time, I also predict that there will be little measurable difference in overall creative output as a direct result of this much-celebrated threshold in copyright history.

I recognize that this prediction begs the question as to how one measures “creative output,” and that it wants classifications like professional vs. amateur, niche vs. popular, indie vs. industrial, etc. But by any metrics we might use, my skepticism is grounded in four simple, observable facts: 

  1. works protected by copyright are not inaccessible for consumers or new creators;
  2. most creators “build upon” existing works in ways that do not implicate copyright infringement in the first place;
  3. creative works have been produced for centuries, so the entire public domain universe is already much larger than the universe of works under copyright;
  4. with regard to general access, online piracy has forced so many works into an effective “public domain,” that it is absurd to argue that the copyright expiration on works published in 1923 represents significant, new opportunities of any real consequence.

None of what I say is meant to diminish the value of the public domain or to advocate perpetual copyright. But I do want to temper the excitement of the moment, which seems to imply that new possibilities for enlightenment and creativity are about to be unshackled from the bonds of darkness, ignorance, and greed. According to Wikipedia, the 1923 retail price for Agatha Christie’s Murder on the Links was $1.75 ($25.70 in 2018); and today, the Kindle versions of Christie novels average between $2-3, while libraries still provide books for free. So, copyright is doing what exactly to general access to these works?

Also, I see that the first of Charlie Chaplin’s feature films, A Woman of Paris, will fall into the public domain tomorrow. This brings to mind the day a few years ago when my teenager went to some school event dressed as Chaplin’s Little Tramp, and all her peers asked who she was supposed to be.  Assuming my kids’ school is a fair representative of “average” in America, it would appear that Chaplin’s Tramp, once the most recognized character in the world, may be lost to oblivion among contemporary adolescents.  

Assuming this is true, it cannot be explained by copyright terms. After all, every one of Chaplin’s shorter films, including his six-reeler The Kid, is in the public domain.  And doubtless many of these films are online, uploaded to YouTube and elsewhere. So what accounts for this gap in cultural literacy among my kids’ contemporaries? Several factors, I’m sure, not least of which is that they are consuming very different forms of culture (e.g., YouTubers sharing personal experiences) that are as alien to me as Chaplin is to them.  

Whether we can judge our kids’ cultural experiences to be qualitatively better or worse than our own experiences at the same age, I’ll bet anything that copyright terms will be a non-factor in any comparative analysis one might attempt. What we can know for sure is that the next generation of adults has more on-demand access to more content—through both legal and illegal channels—than any generation in the history of people; and yet, it is not entirely clear that they “know more” than their parents and grandparents.

Relatedly, I saw a classic example over the holiday of a case for perpetual copyright (at least rhetorically) in the form of a TV film adaptation of Oscar Wilde’s The Canterville Ghost.  It was a production so devoid of several major themes, or humor, present in the original story that Wilde himself would be forgiven for haunting the producers, to say nothing of legally stopping the project from being made. So, works falling into the public domain do not exclusively result in uses of great value. Had the same producers been required, by license, to be more respectful of the original work in the teleplay, the market value would be roughly the same, but the end product would likely be better.  

I acknowledge that everything I say here would still hold true if copyright terms were, say, twenty years shorter than they are today. I also believe that repositories like online archives are extraordinarily useful and understand why an archivist would want to make as many works available as soon as possible. But the general conclusion that “copyright terms are too long” is largely tautological, and individuals like Brewster Kahle of the Internet Archive are too eager to misrepresent copyright history and to attack the interests of living, working creators.    

The general message boils down to copyright terms are too long because they seem too long, even though nobody has yet demonstrated with any substantive data that the term of protection is having a negative effect on copyright’s original purpose to promote progress. Meanwhile, as explained many times, the CTEA was not some capricious, arbitrary term extension, but was effected in order to establish parity with trade partners in the EU and elsewhere so that American authors had the same benefits as their foreign counterparts.  

So, in response to all the hype about what will enter the public domain tomorrow, next year, and the years to follow, I believe this moment is a lot of ephemeral noise (i.e. an excuse for a party) that has scant relevance to the reasons why liberal democracies demand a rich, diverse anthology of informative and creative works in the first place. After all, one need only glance at the apparent success of toxic and fake content online to conclude that it takes much more than flooding the public domain with old works to foster enlightenment. And in that regard, the start of this post was unfair to the “stoners” because the arguments for legalizing marijuana actually had data behind them.

Wishing everyone—even the copyright critics out there—a happy and safe New Year. 

*  The CTEA established the current terms of copyright protection:  life-of-the-author, plus 70 years; or the shorter of 95 years from date of publication or 120 years from date of creation for works-made-for-hire. See statute.

When Copyright Criticism Is Something Else

Photo by Tamagocha

A couple weeks ago, a comment on the Illusion of More Facebook page proposed that the Walt Disney Company was able to get its start in the 1930s because the story for the studio’s first animated feature film Snow White and the Seven Dwarfs was “in the public domain.”  I don’t mean to pick on one particular comment or its author, but there is a lot in this statement that reflects widespread misunderstanding about copyright law and how it works.

First, of course, is that most references to Disney are inspired by the almost universally-believed narrative that the Disney Company was directly responsible for extending the U.S. copyright term in 1998 to its present duration.  Hence, I assume the comment was meant to reveal a hypocrisy—namely that Disney needed access to the public domain that today’s creators don’t have—and they don’t have it because of Disney!  Indeed, that could be reason for outrage, if only it were true.

Disney Did Not Write the Sonny Bono Copyright Term Extension Act 

Although, Representative Sonny Bono would eventually become a co-sponsor and strong supporter of H.R. 2589, the legislation did not begin with him. The law bears his name as a posthumous honor bestowed after Bono died in a skiing accident, which occurred two months before the bill was first debated by the House Judiciary Committee.

Nevertheless, the internet loves a scandal and so helps keep alive the myth that Bono personally walked the halls of Congress with pockets full of Disney’s cash charged with the task of extending the copyright term to protect the Mouse. Disney was certainly among the rights holders who lobbied for the term extension, but they were one of many and do not appear to have played any special role or to have spent extraordinary campaign sums relative to typical expenditures of other rights-holding petitioners.

When the U.S. finally joined the Berne Convention Treaty in 1989 (a treaty that began in 1886), this mandated the change in our copyright terms from a fixed 56-year duration to life-of-the-author plus 50 years.  Then, as Europe moved toward formation of the EU (1992), that alliance mandated that all partner nations amend their copyright terms to life plus 70 years. In response, the U.S. Congress proposed the same terms in order to maintain parity in trade. And that was the main impetus for the term extension.* It’s not as dramatic a story as Mickey Mouse button-holing Members of Congress in the Rayburn Building, but it’s a digest version of how things actually happened. The SBCTEA passed with solid, bi-partisan, bi-cameral support and was signed into law by president Clinton in 1998.

Was Disney Relying on the Public Domain with Snow White?

Sorta, but not really.  Because the Brothers Grimm were collectors of tales that were part of an oral tradition, it’s a little difficult to view their works through a modern copyright lens and know which elements might arguably have been part of the commons at the time. Regardless, a hypothetical copyright could be granted for their unique telling of a particular tale, and this would apply to the story entitled Snow Drop, which is the underlying work that became Disney’s Snow White and the Seven Dwarfs.  But even if we were to imagine a copyright in that work under current terms, then it would have expired 70 years after Jacob Grimm’s death, which brings us to 1933—four years before Disney made the movie.

So, yes, the story of Snow Drop was in the public domain at the time, but not in the way the commenter—or indeed most copyright critics—mean when they seek to argue that contemporary terms are onerously long.  The general assumption is that in 1937, Disney had a richer and deeper well of material to build upon than contemporary creators have at their disposal, and that Disney then used copyright law to close the proverbial door behind them to keep everyone else out.  While it may seem intuitive that copyright’s current terms would stifle the growth in works since 1998 (or some think since 1790), that belief is not supported either by statistical or anecdotal evidence.

Disney May “own” Snow White, but They Don’t Own Snow White

Feeding this false narrative is the idea that copyright “locks up” works for long periods, keeping them out of reach of new creators.  Although nearly every author will confirm that building upon existing works, ideas, tropes, themes is part of the creative process, this fact is not so greatly in conflict with copyright’s boundaries as many a non-creator pundit would have us believe. And Snow White is as good an example as any.

A creator—whether Disney or anyone else—may only protect a unique telling of this classic tale.  Ditto The Little Mermaid, Beauty and the Beast, Pinnochio, and many other titles in the traditional Disney oeuvre. The studio may only enforce copyrights for its versions of these stories; and for Disney, the most valuable aspect of their work is often the pictorial, graphic, or sculptural (PSG) interpretations of the classic characters (see Disney merch).  But the relevance of the idea/expression distinction here is, I suspect, overshadowed by a different phenomenon, which is really a complaint about market dominance.

One could argue that the “Disneyfication” of classic tales can have a homogenizing cultural effect because the company’s vast resources enable, for instance, a single interpretation of Snow White to dominate popular imagination for generations. This is a valid criticism or conversation to have, but it’s one about American culture, business, and marketing that isn’t really influenced by copyright terms as much as people may assume. Nevertheless, I suspect responses to these cultural or aesthetic criticisms tends to color the copyright narrative, particularly when invoking Disney.

If anything, copyright only helps to mitigate creative homogenization by disallowing unlicensed copying of what some may view as corporatized versions of stories and characters. As Harvard scholar Joseph P. Fishman pointed out in his study in 2014, boundaries like copyright tend to be generative for creators, while too much freedom to copy can actually stifle originality. Creators don’t really need a study to know this is true; they can tell you this from experience.

What About the Comics?

Moving on to a different part of the Disney organization, we have the Marvel franchise.  These more contemporary works comprise characters and narratives that many people believe belong in the public domain because they are so ingrained in common culture that it feels like these classic heroes and villains belong to all of us.  But one aspect of this idea that is often overlooked is that these characters attained that place in our hearts and minds because they were controlled franchises.

If you were a Daredevil fan growing up, you didn’t wait with anticipation to hear what your friends thought should happen next, you waited for the next issue to see what really happened next.  Without this common experience shared by fans, Daredevil would not have become a staple of the Marvel universe—and neither would any other character.

The assumption promoted by copyright critics is that when Daredevil falls into the public domain, this will spawn new, innovative ways to build upon the character for more creators.  Perhaps, but not necessarily.  As noted in an earlier post, even with PD works, we tend to see that one version at a time emerges for a period because the market only sustains so many variations at a time.  The example I cited previously is that it would be tough to compete right now with the Sherlock Holmes TV series starring Benedict Cumberbatch; and this is true for reasons having nothing to do with copyright.

So, it seems that a lot of copyright criticism, in certain contexts, is tangled up with aesthetic or emotional sentiments associated with popular and famous stories and characters.  There will always be consumers who don’t like the way a popular work is treated, even by its original creator. Just look at Star Wars. For every ten million fans, there are a hundred million opinions about what George Lucas did, or should have done, with his franchise.  But it was his franchise. If you want to decide the fate of a new multi-billion-dollar franchise, you’ll just have to invent your own.  And as many readers know, that’s exactly what Lucas did when he couldn’t get the rights to make Flash Gordon. 

*As a colleague noted since publication, there was more to this than trade harmonization; but without enumerating the various terms of copyright for different works, suffice to say that it still wasn’t about Disney and Mickey Mouse.