June 17, 2003
Irrelevance vs. Visability of the Public Domain

Larry Lessig points to Mathew Rimmers piece on Eldred and the Eldred Act, and says this about people understanding the importance of the public domain:

Why don't ordinary people get it? Because few understand why the public domain is valuable. Why don't more see why the public domain is valuable? Because today the public domain is over 75 years old. It is ancient history for us, irrelevant to much of ordinary culture.

I don't believe that the public domain is irrelevant to ordinary culture. I think for people who do not think about this every day, the problem is conceptual and invisible. Simply making the problem explicit causes so many I speak with to immediately react in favor of the public domain, get the gravity of the problem. But given that each person needs a simple explanation of the concept in the first place, either in person or by consuming it via a talk or in writing, on a blog, over the 9,000 other things vying for their attention each day, it's going to take some steps to get a critical mass needed to make the problem visible, resulting in a movement that can do something to correct the problem. But much like the environmental movement, the public domain movement can, one step at a time, conquer the same barriers of conceptual understanding. 30 years ago, people didn't think about where their garbage went, or whether recycling was important. I hope it's only 10 years (or much less!!) until people think regularly about where human expression is owned and controlled and when it can be recycled appropriately. I think the issue is visability, verses relevance to our ordinary lives.

Posted by Mary Hodder at June 17, 2003 09:22 AM
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I just convinced my parents that they should care about the public domain. How? One sentence: "Did you know that the works of Shostakovich, Prokofiev, Gershwin and Copland were taken out of the public domain in 1994 by a law called URAA? This means that many orchestral schools will not be able to teach or perform these works without paying the estates of said composers. This also means that a generation of musicians will largely skip these compositions...

Posted by: Joseph Hall on June 17, 2003 01:40 PM

I think Lessig's point is just that the public domain is "irrelevant to much of ordinary culture" in that it's very difficult to point to well-known, recent works that rely on the availability of the public domain, more so than it was in the past when it was more vital. If the public domain were still what it used to be, it would be much simpler to raise awareness and explain the significance of the issue if you could point to important, recognizable cultural artefacts. If you could say to someone, "Can you imagine a world in which x, y, and z could not have been composed/recorded/aired/etc.?" But due to the impoverishment of the public domain we don't have those kinds of examples that would make immediate sense to people.

Of course, raising awareness doesn't have to be that hard for this reason alone. It's true, as you said, that if you explain to people the nature of the public domain and our current laws about it they almost always favor copyright reform. I don't think your views are really that different from Lessig's on this subject. I just think he was expressing some frustration with the vicious cycle created by our current laws, which makes it hard to show people what a richer public domain would mean for our culture simply because we've been living with an impoverished one for so long.

Posted by: susan on June 18, 2003 06:31 AM

I don't think Lessig's views are very different from mine either. I just see the issue of invisibility as meaning there is hope for visibility of the PD with the public, and irrelevance as having no hope for making a movement that changes things. I agree with you that having stories about loss of the PD make sense, but often when I talk to people about these issues, I ask what their companies rely on for IP and then talk about where that IP came from based on PD IP. Example, the internet would not have taken off in the way it did without the modem, which was developed using PD technology, and then the resulting modem technology was put back into the PD. Companies relying on the internet rely on that. Or another, that public funding of university research has led to PD IP, which is then used by many companies to make stuff, like software, hardware, etc. They immediately get the relevance of IP as it directly relates to their jobs, and that a balance between the proprietary and the PD must be there for innovation and advancement, and then you can go from there to their entertainment and fun, as well as their self-expression.

Jason Shultz at EFF suggested to me that we come up with some IP horror stories, much like those used to galvanize support for the environmental movement (ozone and air quality and skin cancer, dolphins and tuna, etc) and that we try to associate an unbalanced, locked down PD with things that are worrisome, uncomfortable and not fun. I think Larry's efforts to make balance in IP are great, I just don't want to lose hope because human expression is critical for all the practical reasons mentioned above, but also for our emotional health and well being as a people.

Posted by: mary hodder on June 18, 2003 08:33 AM
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