"Collecteana"'s blog has some interesting commentary on the difficulties of preserving aging media. But I wonder... is preservation necessarily encouraged by making it easier for works to slide into the public domain? It depends on whether there is some collector waiting there to appreciate them, and whether the rights defining entry and exit from public domain precludes that collector from profiting from a restored version. As it is now, of course, copyright law does not pose an obstacle to someone's restoring a single copy.

The phrase, "copyright law is a blunt instrument," caught my eye. I have often used that description of law in general. It strikes me that it is less true of copyright than of many other forms of law. The sanctions for violating copyright are usually civil... it can be negotiated around and displaced by private agreement.... there are plenty of exceptions. And indeed part of the problem with copyright is not its breadth, but its fragmentation--the difficulty of pulling together the different rights all needed for a license.

What might be more true in this case is that the absence of a registration requirement (or other formalities) associated with a continued claim of copyright is something of a blunt instrument--it transforms anything written or imaged into a copyrighted product and potential orphan. But it seems that people in general are happy with the no-registration regime.

posted by Solveig Singleton @ 3:22 PM | Orphan Works , Public Domain

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From Marginal Revolution:

65 cents per disc The complete Bach, 155 discs, the reviews I've read are quite positive on the recordings. I'm ordering my set tonight. Don't neglect the English Suite in A minor, or the Cantata "Wachtet auf, ruft uns die Stimme."

155 discs of all of Bach's work, for just over $100 - wow! But if all the "consumer" groups, library associations (librarians! They're never wrong!), and commonists are right, this can't be happening as technological protection measures - or DRM - are making the public domain inaccessible (http://www.eifl.net/services/ipdocs/pcda2_oral.pdf)? They couldn't possible be wrong, misguided, and dogmatic, could they?

posted by James DeLong @ 9:17 AM | DRM , Public Domain

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The public domain is often a tug-of-war trophy between IPR and FOSS proponents. Prominent IP figures, such as Judge Richard Posner, argue that the public domain distinquishes IP from real property, and provides critical limitations to copyright and patent doctrine. FOSS advocates often accuse IP of “shrinking the public domain,” or equate their movement with somehow strengthening it. Professor Jane Ginsburg says such FOSS arguments cannot be made so simply. Who is right?

There may be one public domain with many definitions, or many public domains without clear definition! This can lead to confusion. If the problem of clarifying the public domain is impossible, society may find itself looking at a “comedy of the commons!!”

In a recent article, Professor Pamela Samuelson studies different conceptions of the public domain and gives valuable insights on how to crystalize certain definitions for policy discourse. Enriching Discourse On Public Domains, 55 Duke L.J. 783 (2006). Samuelson points out that the public domain is often referred to in the singular, indicating that there may only be one public domain. However, it may well be that scholars diverge in their definition of the public domain in different contexts.

Samuelson outlines a number of conceptions for the public domain and notes that they orbit around three themes: (1) the legal status of information, (2) freedoms to use information, (3) accessibility of information... along a continuum. Proliferation of definitions for the public domain resulted, according to Samuelson, in part because of fears regarding the fate of freely available information resources and philosophical differences of the public domain.

Of the kinds of public domain discussed, only one falls into a formal legal framework. This public domain extends from the Constitution and sets limitations to IPRs; granting protection only for “limited times” and setting standards for obtaining them. The constitutional public domain entails productions whose IP terms have expired, or do not meet the requirements of copyright and patent law. What is in this public domain must stay there, and can be used without permission and without charge.

Continue reading The Public Domain That Matters to IPR Policy . . .

posted by Noel Le @ 9:00 AM | Academia , DMCA , DRM , Free Culture Movement , Patents , Public Domain

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Here's another measurement question for y'all. Back when I was in college, one of my summer jobs involved polling. One of the surveys we were administering was particularly long--it took the respondent about two hours to get through the whole thing. As the weeks progressed, those of us who had to read the questions became desperately bored with it. So for our own amusement, we added a question to the end, to wit "do you think that the universe is contracting or expanding?" Most people thought that the universe is expanding.

Recently in the context of various debates about copyright, the health of the public domain has been called into question. It has been asserted that the public domain is shrinking, or that its vitality is suffering, and so on. But how would one know? How does one measure such a thing? Certainly there will always be boundary disputes at the edges... counting them might be an indication of shrinking, growing, or neither. Likewise, trends at the boundary do not necessarily indicate the overall size or health of the thing. Do we count as "public domain" things that can never be claimed as IP, such as facts or ideas? Or only things that could be and that are no longer claimed, or were never claimed? If the former, how could the public domain ever be measured?

I welcome suggestions, links.

posted by Solveig Singleton @ 10:38 AM | Public Domain

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The public domain is regarded by some as the balancing and constraining counterpart to copyright policy. But where does the public domain come from, and how much due consideration must copyright give it?

In a new working paper, Professor Jane Ginsburg remarks on the misconception in thinking of copyright as some kind of “subtraction from the public domain,” that copyright will shrink or even eliminate the public domain if taken too far. Une Chose Publique? The Author's Domain and the Public Domain in Early British, French and US Copyright Law." Cambridge Law Journal, November 2006. Professor Ginsburg shows that current reliance on the public domain to fight perceived over-expansion of copyright policy carries flawed assumptions on the history of the public domain. Her observations point to yet another instance where arguments against IPRs make analytical mistakes as they seek over-simplification.

If we speak of a grab, we imply that copyright was seized from somewhere. So whence, in this account, was copyright wrested? From the public domain.

The public domain is all the rage. It is invoked to breach copyright’s encroaching enclosure of what one might grandiloquently call the cultural commons of the mind. The heralds of our “remix culture” deploy the public domain...

What provokes this lecture… are what I perceive to be anachronistic assertions of the “immemorial” quality of today’s aggressive concept of the public domain. Some of these arguments look to me like the Roche-Bobois “provincial” line of furniture: modern pieces with nicks and wormholes introduced to impart antique appeal.

Continue reading The Public Domain, Not So Simple... . . .

posted by Noel Le @ 12:03 AM | DMCA , Public Domain

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Entertainment lawyer Chris Castle has a brilliant posting on Sweden's Pirate Party here.

posted by Amy Smorodin @ 3:36 PM | Commons , Free Culture Movement , P2P , Public Domain

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That common misunderstanding of IP arises from analogizing it too closely with physical property is something even free software proponents admit. Hence, I looked up a figure who stands well regarded across the commercial and open source policy spectrum: Richard Posner from Chicago Law School and the Court of Appeals for the Seventh Circuit. In Do We Have Too Many Intellectual Property Rights? 9 Marquette Intellectual Property Law Review 173 (2005), Judge Posner states that one error in thinking about IP stems from “moving too quickly from the principles of physical property to those of intellectual property.” 174.

In the article I found important implications for the public domain (distinctive from open source and free software) as well as fair use aspects of copyright law and and various reforms under consideration in patent law, including: a reverse engineering right for patented software and raising the non-obviousness standard as a means of improving patent quality. Overall, this is a good paper, but similar to other academic works, I wish Judge Posner would have distiniquished the kind of private investment needed for frontier-ground breaking innovation compared to the minimal investment needed for smaller scale inventions.

Continue reading The Public Domain, Distinquishing IP? . . .

posted by Noel Le @ 4:36 PM | Public Domain

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Chris Castle, entertainment lawyer and stanch defender of IP, has a great posting this morning on Lessig and the suit against James Joyce's estate. Chris explains the search giant's vested interest in the case.

posted by Amy Smorodin @ 9:19 AM | Books , Fair Use , Free Culture Movement , Public Domain

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At TCSDaily, Michael Rosen examines the "take back the commons" movement in the context of biotech. He finds:

On the whole, then, while the commons movement raises important concerns surrounding the patenting of life, its criticisms are exaggerated and its proposed reforms, in overlooking the benefits that the market motive provides, threaten to stifle innovation. Yet another reason patenting life is morally justified.

Continue reading Commons Courtesy . . .

posted by James DeLong @ 11:11 AM | Public Domain

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Mother Jones mocks intellectual property in a story "Intellectual Property Run Amok." Despite my distaste for people who don't get jokes, I am going to dissect this a little, partly because I've always been intrigued by how what one finds funny can be determined by, of all things, political assumptions.

Continue reading Mother Jones on IP . . .

posted by Solveig Singleton @ 11:35 AM | Fair Use , Free Culture Movement , Legislation , Public Domain

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posted by James DeLong @ 1:01 PM | Public Domain

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