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The Corruption of Our 'Public Domain' · Thursday August 05, 2010 by Crosbie Fitch

Did you know that the definition of ‘public domain’ as ‘the few published works not protected by copyright’ is very recent?

All published works are supposed to be in the public domain. This was the original pretext behind copyright – to incentivise the delivery of novel and educational works into the public domain – for the public’s benefit (albeit at the cost of cultural liberty).

The modern understanding that copyright protected works are NOT in the public domain is a corruption in meaning we have to thank publishing corporations for. They want to stamp out any notions the public might otherwise get that published works somehow belong to them.

So even today, publication is still supposed to be delivery to the public (into the public domain) of knowledge, art, facts, ideas, etc. An intellectual work is supposed to enter the public domain from the moment of its publication. Allegedly, this delivery is incentivised by copyright.

It is only in the 20th century with the growing recognition by the public of the potential to utilise reproduction and communications technology to share and build upon published works that a work’s copyright status enters into the consciousness of the public at large.

Prior to the 20th century only publishers (or those editors/authors expecting to utilise a published work for inclusion, translation, abridgement, or derivation) were concerned about a published work’s copyright, or as we’d esoterically put it today, whether the work’s fixed expression was in the public domain as well as its ideas.

So it’s a very subtle perceptual shift that has occurred – recently. Only recently with a technologically enabled public is it more important to know whether a work’s fixed expression is available to the public than whether its ideas are.

And that’s why it’s only in the 20th century that ‘public domain’ has changed in meaning from ‘All published works and everything otherwise known to or accessible by the public’ to ‘Anything not protected by copyright’.

With such a gradual transition in meaning paralleling a gradual transition in technology (and publishers’ sabre rattling) there is no single point at which the meaning flipped from one to the other.

And so now, instead of all published works being considered in the public domain irrespective of copyright, everyone happily accepts the myth that ‘public domain’ has always meant ‘Anything not protected by copyright’.

The transition of public from ‘consumers’ to self-publishers trespassed upon the traditional publishers’ territory. That’s why the latter’s semantic inveigling of domain boundaries consolidates the ‘correct’ understanding that 99% of what would have been the public’s own culture properly belongs to immortal publishing corporations (what else would seek to extend an 18th century privilege from 14 years to a period far in excess of mortal lifespans?). Now they would have us believe that not even the ideas are in the public domain. All aspects of a copyright protected work now remain entirely the intellectual property of the copyright holder. Published works have now been repossessed, removed from the public’s grubby mitts and re-enclosed in a quasi-private domain (corporations can have no shame in claiming such human rights as privacy).

We, the public, thus find ourselves in possession of mere scraps, the cultural residue not worth appropriating and enclosing for proper and perpetual commercial exploitation.

Copyright is effectively a tax on the public’s cultural liberty. The state may collect a small portion of that tax to spend on the public’s behalf, but the bulk ends up in the corporations’ coffers (largely foreign). So why not abolish copyright and leave 100% of the value of cultural exchange in the public’s own hands? The state then ends up collecting more in tax from the greater cultural prosperity of its own citizens. The only ones to lose out are those immortals hoping to further exploit, enforce and extend monopolies that are increasingly ineffective – an admittedly very powerful lobby.

Effective intellectual property protection and enforcement are essential for electronic commerce to thrive. Existing intellectual property laws need to be applied in the digital environment.
From: Facilitating the Digital Economy A WITSA Position Paper – 5/98

Today the corporate state attempts to persuade us that unless our culture is ‘protected’ by the monopoly of copyright (a privilege granted to the Stationer’s Guild by Queen Anne in 1710), it cannot be commercially exploited, and so cannot therefore be of benefit to the public. What they would discard to the ‘public domain’ thus becomes a refuse heap full of expired and decomposing cultural detritus, picked over only by desperate scavengers and hardy anthropologists.

The ‘public domain as cultural midden’ is a corruption of meaning by corrupt entities borne of corrupt privileges, both spawned by corrupt legislators in the pockets of the unscrupulously wealthy and powerful.

All published works are in the public domain.

Those members of the public who would enjoy their natural right to copy, their cultural liberty to share and build upon their own culture, should do so – irrespective of copyright, irrespective of being pejoratively labelled as pirates. Mankind’s culture belongs to mankind, not immortal corporations. Are you a human being or a corporate slave?

We will help young people to understand intellectual property (IP), both as buyers and as potential producers – for instance when they upload a work of their own to the internet – as a seamless part of their cultural education.
From: Creative Britain – New Talents for the New Economy – 2/08

Crosbie Fitch said 3775 days ago :

This article expands upon comments I posted to “Why World War I Recordings Won’t Enter The Public Domain Until 2049” on TechDirt.

NB Those WWI recordings are of course already in the public domain, and have been since they were first published. It is only that they will remain 'protected' by copyright until 2049 - beyond the lifespan of any mortal involved in their production.

Crosbie Fitch said 3775 days ago :

I should also point out the related discussion in the comments to Glyn Moody’s article: “Towards a Commons Taxonomy”.

Aaeru said 3074 days ago :

Excerpt from ‘Sharing and Stealing’, Jessica Littman www

“Thirty years ago, the public domain was far more expansive. In 1974, federal copyright protection was not automatic. To get it, you needed to distribute copies of your work to the public, and the copies needed to be marked with a copyright notice.48 Notice of copyright – the familiar C-in-a-circle, along with the name of the copyright owner and the date the work was first published – secured copyright. Distributing copies without notice caused the work to enter the public domain.49 Indeed, while the copyright system offered authors protection for a limited time as an incentive to encourage them to distribute their works to the public, it also attempted to ensure that most works entered the public domain promptly, so that the public could make unfettered use of them.50 Copyright law was designed to separate works whose authors wanted copyright protection enough to follow a few simple rules for preserving it, from works that would have been created and distributed anyway.51
Thirty years ago, when you saw something you wanted to use or share, the default rule was that you were entitled to do so. Unless the object was marked “do not copy” you were, with some modest exceptions, entitled to assume it was in the public domain, because the absence of a copyright notice ensured that it was in the public domain (even if it hadn’t been before).52 Not only that, but the notice had to be accurate, had to tell you when the copyright was scheduled to expire, and had to tell you to whom you needed to address any request for permission.53 The overwhelming majority of potentially copyrightable works didn’t have this notice and entered the public domain the minute copies were publicly distributed. Of the ones that bore the prescribed copyright notice, only a fraction were registered, and of the fraction that were registered, only 15% were renewed, so for most of the copyright-protected works that had the requisite notice, copyright protection lasted only 28 years.”

Crosbie Fitch said 3074 days ago :

Aaeru, Jessica Littman uses the recent definition of ‘public domain’ as ‘works not protected by copyright’.

The question as to whether a work was or was not protected by copyright was primarily of interest only to publishers. Those individual authors considering the use of a published work in their own publications would either be unaware of the issue or would rely upon their publisher to ‘clear the rights’ for them (assuming it was economic).

So I don’t really agree with Jessica’s portrayal of ‘the public domain’, that people used to understand it as the set of works not protected by copyright. She is examining the past with a heightened sense of copyright awareness peculiar to modern times.




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