The Public Domain

 

"Property is theft" -Pierre Joseph-Proudhoun

 Copyright, the mechanism for maintaining Intellectual property is a never ending series of headaches. It's an absurdity on the face of it, how can one claim ownership to concepts? When a story is copyrighted it's not the physical book that's owned but the idea and the specific way that idea is formed, produced and sold. By its nature, it limits art and expression and collaboration between people. Want to make a vampire story? Make sure it isn't similar to Bela Lugosi or Salem's Lot, otherwise that idea won't see the light of day, and you may even get a stern talking to by a law firm. 

Originally copyright was a movement championed by creatives, Victor Hugo was an early advocate of rights for creative workers like authors and painters,  "any work of art has two authors: the people who confusingly feel something, a creator who translates these feelings, and the people again who consecrate his vision of that feeling. When one of the authors dies, the rights should totally be granted back to the other, the people". And was a founding member of the Association Littéraire et Artistique Internationale, an organization of artists which in 1886 became successfully created what became known as the Berne convention, which is today the most common backbone of copyright law on the planet.

But as time has moved on and the protection of rights for artists has proven to be incredibly lucrative for the industries they labour for, the concept has simple gone off the rails. Hugo was also a passionate defender of the public domain and while he did foresee some provision for artists heirs, he believed that it was possible to balance and complement the interests of the two.

Here's a longer quote:

Literary property is of general utility.

All the old monarchical laws denied and still deny literary property. For what purpose?  For the purpose of control. The writer-owner is a free writer. To take his property, is to take away his independence. One wishes that it were not so. [That is the danger in] the remarkable fallacy, which would be childish if it were not so perfidious,  “thought belongs to everyone, so it cannot be property, so literary property does not exist.”  What a strange confusion!  First, to confuse the ability to think, which is general, with the thought, which is individual; my thought is me.  Then, to confuse thought, an abstract thing, with the book, a material thing. The thought of the writer, as thought, evades the grasping hand.   It flies from soul to soul; it has this gift and this force — virum volitare per ora — that it is everywhere on the lips of men.  But the book is distinct from the thought; as a book, it is “seizable,” so much so that it is sometimes “seized.” [impounded, censored, pirated.] (Laughter.)

The book, a product of printing,  belongs to industry and is the foundation, in all its forms, of a large commercial enterprise. It is  bought and sold; it is a form of property, a value created, uncompensated, a form of riches added by the writer to the national wealth.   Indeed, all must agree, this is the most compelling form of property.

Despotic governments violate this property right; they confiscate the book, hoping thus to confiscate the writer. Hence the system of royal pensions. [Pensions for writers, in the place of author’s rights] Take away everything and give back a pittance! This is the attempt to dispossess and to subjugate the writer. One steals, and then one buys back a fragment of what one has stolen. It is a wasted effort, however. The writer always escapes. We became poor, he remains free. (Applause) Who could buy these great minds, Rabelais, Molière, Pascal? But the attempt is nonetheless made ​, and the result is dismal. Monarchic patronage sucks at the vital forces of the nation. Historians give Kings the title the “father of the nation” and “fathers of letters;….. the result? These two sinister facts: people without bread, Corneille [the great French author] without shoes. (Long applause).
Gentlemen, let us return to the basic principle: respect for property. Create a system of literary property, but at the same time, create the public domain! Let us go further. Let us expand the idea.  The law could give to all publishers the right to publish any book after the death of the author, the only requirement would be to pay the direct heirs a very low fee, which in no case would exceed five or ten percent of the net profit. This simple system, which combines the unquestionable property of the writer with the equally incontestable right of the public domain was suggested by the 1836 commission [on the rights of authors]; and you can find this solution, with all its details, in the minutes of the board, then published by the Ministry of the Interior.

The principle is twofold, do not forget. The book, as a book, belongs to the author, but as a thought, it  belongs – the word is not too extreme – to the human race. All intelligences, all minds, are eligible, all own it. If one of these two rights, the right of the writer and the right of the human mind, were to be sacrificed, it would certainly be the right of the writer, because the public interest is our only concern, and that must take precedence in anything that comes before us.  [Numerous sounds of approval.]But, as I just said, this sacrifice is not necessary.

  Sourced from the Public Domain.org

Currently, the Berne Convention stipulates that copyright terms should last for the lifetime of the author plus 50 years. Which to me is outrageous, but it gets worse, it includes provisions for member nations to extend that and many have taken that option including my own the United Kingdom, in many countries its life plus 70 years, and in Spain 80, Mexico 100 years! And the United States is a cluster of confusion since it joined the convention in 1978 and has slowly, I mean glacially slowly, been moving its system to co-operate with it. 

So, not quite the dream that Victor Hugo imagined. Though personally speaking even if copyright were made according to Hugo's wishes I still would have issue. While I agree, in a world of capitalism and governmental authority it's important to protect the rights of its working people's, something that copyright has been very bad at doing, but let's think hypothetically and assume there's a rights' system that can actually do this quite well, why should people who share some civil or blood relationship get special privileges? And why should someone expect and be entitled to control over their creations for life? The idea of the system seems to be built on a false premise that all works of what we call art are the works of singular individuals. Hugo's appeal above keeps making a distinction between the individual artist and the collective audience, but that's not always the case. 

Architects can copyright their designs, but it takes the labour of many to make those designs feasible, so how is it fair that only one person in the process gets to reap the rewards, shouldn't the engineering team that build a bridge be paid every time that bridge is used or a higher one time fee per person for usage rights? That seems ridiculous, but that is in effect what our society compels us to do with art, rent a film or pay extra to buy a way of watching as much as you want, pay for tickets to the cinema or a concert or get a CD, subscribe to a streaming service etc. 

If you read copyright statutes, it becomes obvious that they're quite archaic, the one creator system works quite well for authors and painters and sculptors, the older forms of creation, but film and radio projects and even comics throw that into chaos. The credits for films often take ten or more minutes to finish because they're acknowledgements of work put into the film that is shown in the final product. So does the life plus system kick in once they've all died a long time ago? No, there's been a compromise, in many countries like the UK motion pictures are handled in this way.

A motion picture passes out of copyright after the term of copyright has expired for the following

1. Director
2. Screenplay Author
3. Composer

 But why stop there? The reason is that it just wouldn't be manageable to protect the rights of every individual who contributed to it, just like it wouldn't be profitable to extend architectural rights to builders. At least with this compromise, big studios can negotiate with only a handful of persons. 

And I don't want to even think about how they can decide who gets the term applied to video game and software development. Though, I notice I haven't seen any legal provision for them made in any copyright statute I've read.

Personally, I think the United States of America had a better way for handling art ownership. This feels weird to write since the USA has for the past few decades been the main enemy of the public domain domestically and internationally. Their approach was to tie it to the work itself and not the artist, so copyright was based on year of publication, and limited the term of protection with just one option of renewal and then that was it. Before the 1978 reforms, works of art were protected for 28 years and could if the owner chose to renew for another 28 years, so 56 years in total. This doesn't solve any of the issues of special rights for only certain types of work, and it conflates owners with creators, which isn't always the case and is increasingly rare in the entertainment and academic industries, most published works involve the creative person or persons giving up their copyright to the corporate entity publishing them. 

But it did ensure a lot of material entered the public domain in a more timely manner. If this benevolence is confusing, a major factor in this approach was that most works stopped being profitable for their owners in the middle of their first term. So some did not bother to renew, and some who did use the option only did so on the outside chance that a second windfall would come their way. This is why you have this strange situation where works are still copyrighted in the rest of the world but not in the US, and tangentially why it works in reverse, stuff is still copyrighted in the US and only the US, like the last two Sherlock Holmes short stories authored by Conan Doyle and the title of the Casebook of Sherlock Holmes, which collected the last set. Between the 1970s and 1990s the US passed a lot of legislation relating to copyright and intellectual property, virtually every single one of these updates place more power on corporate owners, but one of the worst damages was a 20-year freeze on the public domain. 

That's another area of the archaic nature of the copyright system, since on the internet we live in a global market that is increasingly standardizing and becoming uniform, and yet we still have to abide by a confusing patch work of rules, laws and limitations, at both ends. I live in the United Kingdom and so have to abide by the laws and norms of that territory, however as a user of the internet the laws that apply depend on each particular site, where its owners live or are based for tax purposes, and where the site is registered. If you've ever opened a link on a website or youtube video and seen some message along the lines of 

Unfortunately this site contains content owned by ____ who has blocked it in your territory

or

Unfotunately we cannot show this contents to your region as we do not comply with regulations in your territory

This is why. It's simply unworkable, I've listened to librivox recordings of things that aren't public domain in my territory, and I've shared stuff that is but not in the US. I have neither the interest nor the means to police other people's property for them, that was why there was so much furore over ACTA, SOPA etc. Those legislative moves were designed to force websites to become police officers for content owners, effectively studios and publishing houses. 

We can't keep going like this, I love art and want to experiment and share it. This is why I've started this blog as a way to celebrate and raise awareness of the importance of the public domain, creative commons, copyleft et al, and the wider movement for a free society.