The Public Domain: What does it look like?

I’m reading The Public Domain: Enclosing the Commons of the Mind by James Boyle and just finished Chapter 2 (Thomas Jefferson Writes a Letter).

It’s hard to mentally envision the “public domain” because, while we may think about intellectual property itself, we tend not to conceptualize its opposite, the “outside” of intellectual property. The public domain, Boyle says, is “not some gummy residue left behind when all the good stuff has been covered by [intellectual] property law” (p. 40-41). The public domain is, rather, the vast majority of our culture. (Language itself, for instance, is part of the public domain. You don’t have to buy “English, Professional Edition”; it’s just there for you to use as you wish.)

The whole justification for the government granting copyrights and patents – which are, in effect, monopolies – is to provide a form of “protection” in order to encourage authors and inventors to put forth the time, effort and expense to create new works, and then to receive reasonable recognition and reward in return. But, in summarizing Jefferson’s warning about this protection, such monopolies “should be tightly limited in time and should not last a day longer than necessary to encourage the innovation in the first place.” (p. 21) In other words, some protection may be useful, but it should be as temporary and limited as possible.

This has provided me a metaphorical image. I think the public domain is like a coral reef. The vast, beautiful majority is comprised of long-dead coral animals. On the edges, here and there at any given time, are living coral polyps. The live a little while and then die, their calcified remains adding incrementally to the overall coral reef. The living coral polyps need some protection to do their job. But their lives are temporary. If their lives were permanent, the reef wouldn’t grow. And the collective result of their temporary “production” is the giant, diverse coral reef for others to use and enjoy (ignoring, of course, the tragic ecological threat posed to real coral in the real world).

This is not a perfect metaphor for lots of reasons. But it’s helped me construct a mental image for the public domain: vast, beautiful, diverse. And, to the extent that intellectual property is justified and useful (which is an argument in its own right), it should be limited and temporary in order to enrich our shared public domain as soon as possible.

This is one reason Creative Commons make so much sense. Enabling individual creators to determine for themselves the limits of their copyright is a much more nuanced and efficient way of applying “just the right amount” of protection for each creator’s work. The government’s current one-size-fits-all system is both heavy and ham-handed by comparison. In order to protect the very few creations that might (another argument) warrant extensive protection, it “overprotects” all creative works, and, in so doing, squanders the dynamic potential of our public domain -- the “basis for our art, our science and our self-understanding... the raw material from which we make new inventions and create new cultural worlds.” (p. 39)

The Public Domain: Why Intellectual Property?

I’m reading The Public Domain: Enclosing the Commons of the Mind by James Boyle (pub. date: December, 2008!). I’ve long struggled with the basic dilemma of intellectual property. (I’ll focus on copyright, though similar arguments apply to patents and trademarks.) On one hand, it makes sense that an author, artist, musician, photographer, etc. ought to get credit and maybe make money from their creative output. On the other hand, as individuals and as society, we benefit from the sharing of our collective culture. The dilemma, Boyle explains in Chapter 1, is in large part due to the excessive and strict terms of copyright, which is granted for “life plus seventy years, or ninety-five years for corporate ‘works for hire’”. Boyle’s delicious metaphor explains that:

... in the Library of Congress’s vast, wonderful pudding of songs and pictures and films and books and magazines and newspapers, there is perhaps a handful of raisins’ worth of works that anyone is making any money from, and the vast majority of those come from the last ten years. If one goes back twenty years, perhaps a raisin. Fifty years? A slight raisiny aroma. We restrict access to the whole pudding in order to give the owners of the raisin slivers their due. But this pudding is almost all of twentieth-century culture, and we are restricting access to it when almost of all of it could be available. (p. 12)

I’m reminded of an ethical case study posed back in Library School: You’re an academic librarian, and a faculty member comes to you at the end of Winter term, wanting to take home a rarely used reference book over the break. What do you do? The teacher, Kris Subramanyam, was incredibly meticulous and precise in all his doings. So, I assumed that the “right” answer (i.e., the one I thought Dr. Subramanyam wanted to hear) was to hold firm to the rule that reference books don’t circulate, and tell the faculty member in effect, “tough shit, you can’t take it home”. I was both surprised and challenged to hear Dr. Subramanyam discuss the subtleties of the situation... that since it was a rarely used book, and few people would be around during the school break, it would be reasonable to allow the faculty member to take the book home. The overarching purpose is to help patrons get the information they seek; rules can serve that purpose, but they shouldn’t get in the way of it. This opened my eyes to realize that the best librarians distinguished themselves not by being best at following arcane rules of librarianship, but by exercising mature judgment (wisdom) in helping to meet the information needs of the people they served.

And so it is with copyright. Clinging blindly to the rules ensures that none of us can fully enjoy the vast pudding of 20th century creative output, even if the copyright holders have no objection or cannot be found. But our culture would be better served by a more subtle, wiser and user-centered approach to managing our cultural treasure trove. This is not just a trivial matter of making voiceovers for old movies. I believe it speaks to the intellectual, creative and cultural environment that we must develop in order to successfully confront the political and ecological crises that face us. But that’s another story.

Preface to the next (and hopefully future) post(s)

I’ve been wanting to blog more, but haven’t yet gotten into the habit (mindset, paradigm). Part of it is typical habituation, like getting started on eating differently or exercising. Part of it is focus. I have lots I want to say, but am unsure of what to grab onto and write about. And this disconnect feels poignant as I read some of the books (and articles, blog posts, etc.) that have been exciting me so much. So, what I’ve been thinking of doing, which will address all of these concerns, is to blog about each book chapter when I’m reading a book.

I’ve read some terrific books lately. Books which have excited me (to a degree similar to how Ivan Illich’s Deschooling Society radically and profoundly woke me up in 1977). And as I read these books, I highlight passages and think about how these ideas fit into my own ever-emerging paradigm.... And then they’re gone. The two most exciting books I’ve read lately (twice, and still have more to get out of them) are:

· Here Comes Everybody by Clay Shirky

· Everything is Miscellaneous by David Weinberger

And, currently, I’ve just begin another book about intellectual property called The Public Domain: Enclosing the Commons of the Mind by James Boyle, which is hot off the presses (publication date: December 8, 2008!). I’ve finished the preface and first chapter and stopped. I’m anxious to continue (and admit to skimming ahead), but the practice I want to try – hopefully repeatedly, but at least once – is to pause after the chapter and blog about it. I was thinking about this as I was reading it, and I noticed that my attention was focused in a different way. My highlighting and annotation was more purposeful. I already know what I want to write about. So, here we go...