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.