The Public Domain Is the Rule, Copyright Is the Exception

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We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what’s at stake and what we need to do to make sure that copyright promotes creativity and innovation.

Remember the monkey selfie? Animal rights organizations and a photographer went to court to fight over who owned the copyright in a picture where the photographer set up the camera but the animal took the pic, and great fun was had by all. But as our friends at Public Knowledge noted, maybe no one “owned” the picture.

And that’s just fine. Most of our culture, knowledge, and history isn’t “owned” by anyone at all—it is available for all to use in the vibrant and ever-expanding public domain. This domain is populated by formerly copyrighted material and material that was never copyrightable in the first place. The first category is what most people probably think about when then they think of the public domain: things such as literature, art, music and movies, for which the copyright term has expired or the rightsholder has dedicated the work to the public domain. Under the original U.S. copyright law, each generation was largely free to use the copyrighted material of previous generations, because terms were much shorter (and so was the scope of what could be copyrighted). But terms grew longer and longer until, one year ago, material from 1923 onward finally started entering the public domain each year.  There doesn’t seem to be much appetite to extend U.S. terms further (not so other countries), so presumably these kinds of works will continue to enrich the U.S. public domain.

Meanwhile, the second, less glamorous, category—the one of ideas, facts, procedures, methods of operation, laws, and regulations that are deemed to belong to everyone—has become highly contested.

Judge Louis Brandeis said, “The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.”  Some very powerful interests would beg to disagree.

For example, a pitched battle has been raging for a decade about the copyright in Application Programming Interfaces (APIs), which are, generally speaking, specifications that allow programs to communicate with each other. It’s headed to the Supreme Court in March. The API battle follows on the heels of another dispute over whether the State of Georgia can claim a copyright in its official code, which, by legislative fiat, includes annotations. Meanwhile EFF is representing Public.Resource.Org in a years-long fight over whether private entities can claim copyright in huge swaths of the Code of Federal Regulations.

One thing, other than copyrightability, unites these legal battles: all of them concern content developed by people that did not need a copyright incentive. In other words, they would have done the work (and mostly did do the work) without compensation from copyright royalties. 

As we explained in our first amicus brief in the API litigation, for example, software developers assumed APIs were excluded from copyright protection—but that didn’t stop them from writing and using them. In fact, that exclusion was essential to the development of the home computer, operating systems, programming languages, the Internet, and cloud computing—creating a statutory monopoly in APIs would likely have created a licensing thicket that would have slowed innovation to a crawl.

As for the Georgia Code Annotated, the code itself is developed like most laws, by legislators informed by lobbyists and the general public. All of those people have their own reasons for drafting laws, and none involve earning copyright royalties. The annotations themselves are developed by a private company that might enjoy the royalties, but could get them anyway by simply publishing their own version, without the state’s official imprimatur.

And the last dispute concerns standards, such as the National Fire Safety Code, that are initially developed by volunteers, government officials, and other professionals experienced in the relevant industry, and later incorporated by reference into law. They do the work to contribute to the public interest, mostly without payment, and never receive any royalties for it. The purported copyright holders are the organizations that help organize the process—but those organizations receive ample compensation through dues, selling educational materials, and trainings.

Copyright maximalists denigrate the public domain as the space that creative works “fall into” eventually, once their financial value has been thoroughly exploited. In reality, many more valuable works occupy the public domain than the private one, and its contributors are legion. Their work, and the public domain itself, remind us that the copyright monopoly, and the assumptions it embodies about how to spur creativity, represent a limited exception to the general rule: that most production of knowledge and culture has always taken place within the public domain. Chipping away at the public domain will necessarily inhibit, rather than encourage, new creativity.

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Author: Corynne McSherry

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