Public Domain Day: A Fake Holiday Illustrating a Common Misunderstanding about Creative Work.
by John Degen — @jkdegen
As the ball dropped in Times Square late on December 31st, free-culture and sharing-economy enthusiasts around the world had likely already sent out their Happy Public Domain Day! cards and letters to each other, celebrating the end of copyright protection for a new batch of creative works. Public Domain Day cards are, presumably, taken from someone else, the sentiments in them written by other people, but copied and pasted word for word into new user-generated works.
What a joyous moment of celebration.
What are we celebrating, exactly? According to those observing this non-holiday, as of January 1, 2016 (in Canada at least) the works of T.S. Eliot have finally been made available to a culture starving to access the poetry of this woefully inaccessible and virtually unknown literary figure. At last! Canada has waited so, so long for Eliot’s poetry to lose copyright protection, because we’ve been unable to get at it before now.
The Duke University School of Law’s ridiculous page on Public Domain Day explains in greater detail:
Canadians can stage their own dramatizations of T.S. Eliot’s Old Possum’s Book of Practical Cats (the basis for the Broadway show CATS), or add the full works of Churchill and Malcolm X to online archives, all without asking permission or violating the law.
It really does sound like Christmas all over again, doesn’t it?
Of course, what all of this silly faux-excitement is really celebrating has almost nothing to do with any workable access or freedom. What it has to do with, instead, is not paying authors and artists for their cultural contributions. While the vast public domain of free works does indeed offer us all the possibility of newly adapted works, almost none of those possible adaptations will ever happen or, if they do, they will have next to no impact on our shared culture. I mean, I’m sure my fellow Canadians have all just been dying to get out there on stage in new adaptations of Eliot’s cat poems, and you can bet the audiences are just clamouring to get in the seats for those productions. Because CATS really didn’t cover the ground.
For print works, yes, this will mean that new editions will appear, cheaply, with little to no value added, and for the profit of the publisher only. And yes, it means folks can upload and download free e-texts (because, you know, respect for copyright protection has made sure no books have been scanned or loaded on the Internet without permission to this point). But is anyone really suggesting a new edition of Eliot’s poems will be easier to access than the millions upon millions of copies of his work already in existence in every bookstore and library around the world? The one and only thing the loss of copyright protection seems to ensure is that the original creator and his/her heirs are out of the economic picture for good.
When thinking of the public domain, as I’ve stated elsewhere, one needs to start with the understanding that such a concept simply wouldn’t exist were it not for the necessary legal protection afforded by copyright laws. It is, by definition, the absence of copyright protection. As such, the public domain is a fine abstract place to store, seek and find works from our culture that, because of their own limited commercial interest, no longer have a significant audience and therefore may not pragmatically need continued and diligent moral and economic protection.
Despite all the desperate, celebratory rhetoric from free-culture folks, the public domain is certainly not the best place to keep relevant works.
It works as a site for long-term storage, rather like one of those depressing container farms of concrete block walls and steel doors. But it is certainly not the only or most helpful place to do that. Non-commercial books under copyright are still available, and much more accessible, in libraries and archives that bother to obtain permission. A truly well-funded and comprehensive library and archiving sector would be free from the constraints that sometimes put it at odds with copyright protection, and would provide all the long-term storage and accessibility necessary to keep our precious cultural works prepared for further relevance. Such an entity could work hand in glove with respectful copyright to keep protecting the interests of creators, while providing virtually unlimited access.
A truly radical rethink of copyright would revert all rights for a work to the original author/creator the moment a contracted publisher/producer stopped seriously trying to exploit those rights in the marketplace. This could (and should) be built right into the publishing contract. That would then give the author the freedom to make her own choices about exploitation. Because, despite what all the silly horn-tooting about the public domain might promise, there is no better or more diligent caretaker of a cultural work than its creator. One of those creator-driven choices for exploitation might indeed be a public domain-like concept, but far more likely the author would do everything in her power to make the work as widely available and adaptable as possible, while still earning from it.
Now that would be something to celebrate.
John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organization representing more than 2000 professional authors. He is also Chair of the International Authors Forum, which represents over half a million professional authors worldwide. Reach him on Twitter @jkdegen
Read John Degen’s most popular Medium article: 5 Seriously Dumb Myths About Copyright The Media Should Stop Repeating.
This article is one of a growing series of pieces I am writing in response to some of the silly yet pernicious illogic in free-culture arguments against copyright. My aim is to raise copyright discussion out of the abstract muck of free-culture theory, and bring it back onto the dry land of pragmatic reality. Please share widely if you agree with the aims of this project.
